Litigation

Lawsuit Over 15 Acres on the Pisgah-Nantahala: New Forest Plans and Previously Approved Projects?

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Mature trees on Brushy Mountain in Nantahala National Forest in August. Photo: Jack Igelman / Carolina Public Press

I’d like to point out to any FS leadership who read TSW that folks on the Forest wouldn’t talk to me to tell their side of the story.  So they are being good employees.  Problem is, if it weren’t for retirees who happen to keep up with the details (retirees like this being rare and threatened by loss of interest), we would never hear the FS side- unless there is an objection response on the same points. Maybe this would be a good application for AI.. “find the FS statements about … in the EA, response to comments and objections.” Still, I don’t think the Cone of Litigation Silence is good for public understanding, trust and support.

Anyway, here’s a link to Jack Igelman’s recent article on the issue. You can follow him on TwitX @ashevillejack.  I’m not a legal person, as everyone knows, so there are some quotes from me that are off the top of my head about why these 15 acres are of concern.  Conceivably with the same funding invested, the plaintiffs could buy their own 15 acres and manage it however they wanted.  Maybe our friends at SELC will weigh in.  Kudos to Jack for reading the EA!

The agency is obligated to manage the forest along the Whitewater River as a wild and scenic river corridor, which limits management options. However, timber harvesting is allowed to occur as long as it does not harm the river’s outstandingly remarkable values or degrade its water quality. The wild and scenic corridor extends about one quarter-mile on each side of the river.

“This timber prescription takes it backwards,” said Nicole Hayler, executive director of the Chattooga Conservancy. “The Forest Service has a track record of management activities in eligible areas to basically whittle away at the eligibility.”

Will harvesting “harm the values” or “whittle away at eligibility”?  I don’t think we can judge without the prescription. (NHP is the natural heritage program.)

In the Southside Project’s final Environmental Analysis released in 2019, the Forest Service included a response to objections that the project analysis failed to analyze impacts to state natural areas.

The NHP determined that portions of the stand are dominated by white pine, an artifact of previous land use that is not naturally occurring.

According to the NHP, “It would be beneficial to remove the white pines from this stand, and then manage the area after harvest in such a way to restore the natural community” while acknowledging that some areas along the Whitewater River are in excellent condition.

The NHP did not respond to CPP’s interview request.

But if it’s good to remove the white pines, then maybe taking some more trees and getting openings for the “natural community” is a good idea.  Again, it would be nice to see the prescription.

The timber harvest prescriptions for the tract “require harvesting much more than white pine,” SELC attorney Patrick Hunter said. “We can say with certainty that the NHP’s request to limit logging to white pine is not reflected in the Forest Service’s final decision.”

But did the NHP say to limit the logging to WP? What other species are there? Is taking out the WP and other species an opportunity to increase tree species diversity or wildlife habitat?

Although the lawsuit includes a relatively small parcel of land, Friedman said that the court’s ruling could establish legal precedent around the influence of new forest plans on projects initiated and authorized under prior plans.

“The same groups who didn’t want certain projects before will still not want them” after a forest plan is finalized, she said. “If they feel strongly enough about them and have the financial wherewithal, they will litigate those projects. That’s just the way it works for most of the country; it’s business as usual. “

Litigating forest restoration projects in the Forest Service’s Southern region, however, are less frequent compared to other parts of the country, such as the Northern or Pacific Southwest region. There has been just one forest restoration project litigated in the Southern region which stretches from Texas to Virginia since 2003.

Hunter told CPP this is the first time SELC has initiated litigation against the Nantahala or Pisgah National Forest.

Whether the case is settled inside or outside of court, Friedman said changing an existing agency decision may set a precedent for other projects and other national forests.

According to Hunter of the SELC, the lawsuit seeks to validate the understanding that activities occurring within the national forest must be consistent with the current forest plan.

He noted that the complaint could reinforce existing precedent citing a 2006 decision against the Cherokee National Forest in Tennessee in which the court ruled that a timber harvesting and road building project must be made consistent with a revised forest management plan that went into effect after the projects’ authorization.

The legal action reflects broader concerns about balancing the need for timber harvesting to restore the ecology of the forest while preserving ecologically significant areas and underscores the complexities of managing public lands.

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Of course, the Cherokee NF is indeed in Region 8, so I guess the difference is whether the project is a “restoration” project or a “logging” project.  I would only offer that what the FS sees as a restoration project (with tree removal), other entities often see as a “logging” project.  This is a real side trip-  but I ran across a paper by Miner et al. from 10 years ago (no paywall) that had this graph. The authors characterized these as “land management” cases, not necessarily vegetation management cases.

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David Whitmire, of the Fish and Wildlife Conservation Council, which represents the interests of fishers and hunters in Western North Carolina, said the lawsuit could, however, slow down forest-restoration work.

“I would rather see money spent on projects rather than lawyers,” Whitmire said. “The Forest Service is having to back up and deal with the lawsuit. It takes away a lot of resources that would otherwise benefit the forest.”

I’d only add that if this case sets precedent for forest plans being retroactive for ongoing previously approved projects, I think it might have two effects: first that Forests will not want to do plan revisions. When I worked in Region 2, many forests were not enthused about plan revisions anyway (reopening large numbers of disagreements to what end?).   Second is that if they are in revision, they would seemingly be less inclined to give areas with ongoing projects more restrictive designations.  It seems that both of these co-evolutionary responses by the FS would be against what plaintiffs would ultimately prefer.

But perhaps the plaintiffs will weigh in.

Public Lands Litigation – update through February 2, 2024

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FEATURED CASE

Court decision in North Cascades Conservation Council v. U. S. Forest Service (E.D. Washington)

On January 17, the district court granted summary judgment to the Forest Service with regard to the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The proposed project stated that most of the thinning and prescribed fire treatments would use a “condition-based management strategy.”  The court held that the project complied with NEPA requirements related to the proposed action, alternatives, cumulative impacts, public participation and the significance of effects.  The latter two issues implicated the issue of condition-based management, where the court held:

“At the heart of Plaintiff’s challenge is the Forest Service’s use of condition-based management. Plaintiff has not shown that this approach violates NEPA as a matter of law. Here, the Final EA disclosed detailed decision criteria that will be applied during the TRP implementation to ensure the actual conditions on the ground meet the expected conditions disclosed in the Final EA. If they do, the approved treatment will be applied. If they do not, the treatment will not be applied.

 In this case, the Final EA’s description of condition-based management details the decision criteria for each approved activity, specific prescriptions that will be applied if those decision criteria are met, maps identifying where those prescriptions would be applied, and estimates of the timing of implementation.

The Court finds that the use of condition-based management is not arbitrary or capricious as a matter of law and as applied in this case.”

The highlighted language is why I think “this case” may represent a different kind of “condition-based” management than other project we have seen, some of which have lost in court.  This statement means the action will not be changed from how it has been described (other than possibly reducing the scope of the action and its effects), and it limits the likelihood that unanticipated environmental effects may occur (if they do become evident later, the project would still be subject to NEPA’s new information requirements).  Overall, the specificity of the decision seems to be in greater detail than other projects labeled “condition-based,” and in this regard is more similar to the Ashland Municipal Watershed case upheld by a court and discussed in my comments here (though the project area of 24,000 acres is larger). While the Twisp Project court carefully recognizes that such management is legal “as applied in this case,” this implicitly recognizes that it might not be if done with less specificity or without the limit that was imposed.

OTHER FOREST SERVICE CASES

Court decision in Alliance for the Wild Rockies v. Higgins (D. Idaho)

On January 10, the district court held that plaintiffs had waived their right to sue for a violation of the Healthy Forests Restoration Act by failing to object to the intended use of a categorical exclusion for WUI projects during their participation in administrative proceedings.  Qualifying projects are exempt from formal objections; however, there was an opportunity for plaintiffs to notify the agency during scoping of its disagreement about HFRA compliance, which they did not do in their “more than 100 pages” of scoping comments.

New lawsuit:  Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On January 31, five conservation groups sued the Nantahala-Pisgah National Forest over its Southside logging project.  The project was developed under a forest plan that has been recently revised, and the complaint alleges that the project is not consistent with the revised plan.  The revised plan places the 15-acre timber stand at issue in a Special Interest Management Area based on its high ecological values, and also protects the scenic integrity of lands adjacent to the Whitewater Scenic River where the stand is located.  The complaint alleges that the logging contested in the lawsuit, that intends to create “early successional habitat,” does not meet the specific criteria established in the forest plan.  (The article includes a link to the complaint.)

BLM CASE

Withdrawal of the subject of Willamette Riverkeeper v. Teitzel (D. Oregon)

On December 14, the BLM announced the withdrawal of this project following litigation commenced in November “in order to incorporate additional aquatics data and analysis,” likely including the effects on the chinook salmon of concern to plaintiffs.  Plaintiffs then dismissed the lawsuit.

FIRE FALLOUT

Freres Lumber Co. has sued the Forest Service for $33 million for not trying hard enough to put out the 2020 Beachie Creek Fire.  The plaintiff alleges that this case clears the high bar for liability under the Federal Tort Claims Act because of the Willamette National Forest’s “negligent failure to follow its own mandated fire attack plan.”  It burned over 5000 acres of the company’s timberlands.

On January 21, “yet another utility lawsuit” was filed over the 2020 fires in Oregon.  Law firms representing 238 victims who lost homes and property in the Holiday Farm fire sued the Eugene Water and Electric Board, Lane Electric, and Bonneville Power Administration in federal court for their roles in the  fire, which burned both national forest and BLM lands east of Eugene.

A California man has pleaded guilty to setting several fires on the Shasta-Trinity National Forest in 2021, including some behind firefighters who were actively fighting the Dixie Fire.  (The article includes a link to the plea agreement.)

An Alaska charter fishing company has paid $900,000 to settle a lawsuit brought by the U.S. government alleging one of its guides started a wildfire in 2019 by failing to properly extinguish a campfire at a campground on the Klutina River. The funds will help cover the costs incurred by state and federal firefighters to extinguish the fire, which burned about 0.28 square miles.

FISH AND WILDLIFE SERVICE

  • Wolverine listing

Notice of Intent to Sue

On January 26, Montana Fish, Wildlife and Parks filed a notice of intent to sue the U.S. Fish and Wildlife Service within 60 days if it does not overturn its November decision to list wolverines as a threatened species under the Endangered Species Act.  The complaint alleges the agency did not use the best available science.  This listing decision followed previous litigation for not listing the species (last discussed here).  Idaho’s Office of Species Conservation filed a similar notice on the same day.  (The articles have links to the notices.)

On February 2, the U. S. Fish and Wildlife Service announced that it would reiterate the decision by Congress to delist the gray wolf in the northern Rocky Mountains.  The FWS rejected arguments that hunting initiated by the states where it had been delisted constituted a threat that warranted relisting the species.  At the same time, the FWS announced that it will undertake a process to develop a first-ever nationwide gray wolf recovery plan by December 12, 2025.  A FWS appeal of a district court decision that relisted wolves outside of the Northern Rockies is pending.  The article includes a link to the press release covering these actions.

OTHER CASES OF INTEREST

  • Chevron deference and the 1872 Mining Law

On January 17, the Supreme Court heard two cases against the National Marine Fisheries Service rules pertaining to monitoring on fishing boats, but which could make it harder for all federal agencies to regulate.  The “Chevron Doctrine” is the result of a 1984 case supported by conservatives at that time as a curb on “unelected liberal judges” overruling federal agencies.  It required courts to defer to interpretations of statutes by federal agencies if the statute is ambiguous and the agency interpretation is reasonable.  Now it appears this conservative court would rather make the interpretations itself instead of “unelected federal bureaucrats” who are more responsive to a liberal administration (which was elected).  Here is a short overview of the statements made by the Supreme Court at the hearing.

How might that affect federal land management?  As an initial point, an agency’s interpretation of its own regulations is governed by another court case (Auer) that would not necessarily be affected.  A forest plan’s compliance with the 2012 Planning Rule should be governed by that.  On the other hand, the Planning Rule itself could be reviewed under whatever standard the Supreme Court comes up with to modify or replace Chevron.  There is a question in my mind of whether regulations like this that govern agency actions like planning, rather than directly affecting the public, would be viewed the same way.

As a real example, on January 16, the D. C. Circuit Court of Appeals conducted a hearing in Earthworks v. U. S. D. I., a case filed in 2009.  It concerns a 2003 regulation implementing the 1872 Mining Law that allows mining companies to claim an unlimited amount of federal land around a mining site for mining-related activities like chemical processing and waste dumping.  If there is any ambiguity in the statute, the court would have to defer to the Interior Department’s decision, as per the Chevron doctrine.  The issue then becomes whether the statute is ambiguous, and the courts get to decide that (even though the judges know less about the subject matter than the agency expert).  Here’s what the law says:

“Where nonmineral land is needed by the proprietor of a placer claim for mining, milling, processing, beneficiation, or other operations in connection with such claim, and is used or occupied by the proprietor for such purposes, such land may be included in an application for a patent for such claim, and may be patented therewith subject to the same requirements as to survey and notice as are applicable to placers. No location made of such nonmineral land shall exceed five acres and payment for the same shall be made at the rate applicable to placer claims which do not include a vein or lode.”  (30 U.S.C. 42(b))

At the hearing, the parties offered their interpretations of whether this language is ambiguous, and whether it limits nonmineral land inclusion in a claim to five acres, and therefore whether or not BLM’s current regulation imposing no limits is valid.

On January 26, Puckett Land Co. filed a motion to dismiss (and the court granted it) its diligence application for conditional water rights to avoid abandoning water rights that date to 1966.  The conditional rights were associated with the planned construction of a 23,983-acre-foot reservoir on BLM land within the boundaries of an area (Thompson Divide) that the Forest Service and BLM are proposing to withdraw from eligibility for new oil and gas leases.  The reservoir would have been used for shale-oil production in that area.  (The federal agencies had not filed a statement of opposition to the water right.)

POST-LITIGATION FOLLOW-UPS

Two national forest travel management plans were recently completed that respond to prior litigation.

In 2007, a lawsuit resulted in a court order that barred motorized over-snow vehicles from the entirety of the caribou’s recovery zone on the Idaho Panhandle National Forest, cutting off access to about 250,000 acres (most recently addressed here).  The Kaniksu Over-Snow Vehicle Use Designation Project won’t go into effect until the Forest Service publishes a final map, which is expected before next winter.  It reopens some areas to snowmobile use, and closes areas earlier in the spring to protect grizzly bears.  On the horizon?  A spokesman for WildEarth Guardians said, “We’re still evaluating the decision and considering our options while trying to balance out a lot of litigation priorities.  Sadly, there are a lot of bad decisions out there. This is one of them, and we’re taking a close look.”

The Nez Perce-Clearwater National Forest has prepared a Draft Record of Decision and Final Supplemental Environmental Impact Statement for the Clearwater National Forest Travel Planning Project to comply with the District of Idaho’s December 2022 remand order and prohibition of motorized use of the Fish Lake Trail (most recently discussed here).  It would again amend the forest plan and reinstate summer motorized use on the Fish Lake Trail.

A proposed resource management plan from the BLM in Arizona would limit recreational shooting to 5,295 acres of the 486,400-acre Sonoran Desert National Monument. Currently, target shooting is permitted on 435,700 acres.  The plan is the result of a series of lawsuits and an April 2022 court settlement that required the BLM to reassess how it handled recreational target shooting on the monument (most recently discussed here).

Public Lands Litigation – update through January 12, 2024

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It was relatively quiet in court over the holidays (but interesting).  (What will the new year bring?)

FOREST SERVICE

Magistrate recommendations in Center for Biological Diversity v. Moore (D. New Mexico)

On November 17, the magistrate judge recommended dismissing this challenge to livestock grazing on the Sacramento Allotment on the Lincoln National Forest as moot.  Regarding compliance with the Endangered Species Act for the New Mexico meadow jumping mouse, the judge determined, “The new BiOp issued by FWS on or before December 31, 2023 … will moot Petitioners’ claims regarding the validity of the 2021 BiOp,” because it “will include substantive regulatory changes,” which respond to changed circumstances.  (No word on whether this actually happened.)

New lawsuit:  Gallatin Wildlife Association v. Erickson (D. Montana)

On December 4, plaintiffs in Center for Biological Diversity v. U. S. Forest Service (discussed here) agreed to avoid a preliminary injunction hearing when the Custer Gallatin NF agreed to not take further action on the South Plateau Project until summer.  On December 18, Gallatin Wildlife Association, Native Ecosystems Council, and WildEarth Guardians filed a lawsuit against the same project.  They allege violations of ESA and NEPA for the project, which would involve clearcutting 5,551 unspecified acres of forest, including mature trees; commercial thinning of 6,500 acres of forest; 2,500 acres of non-commercial thinning; 1,800 acres of fuels treatment; and up to 56.8 miles of temporary roads, based on an EA.  The project is in an area described by plaintiffs as a grizzly bear “sink,” where the population is struggling.  Plaintiffs question the science used to consider effects on grizzly bears, challenge the project’s “condition-based” management under NEPA, and also allege a violation of President Biden’s executive order that requires the Forest Service and Bureau of Land Management to conserve mature and old-growth forests.  (The article includes a link to the complaint.)

New lawsuit: Center for Biological Diversity v. U. S. Forest Service (D. D.C.)

On January 10, six conservation organizations sued the Monongahela National Forest to protect the federally endangered candy darter (a fish) and two endangered bats from a commercial Forest Service road use permit to haul coal from the Rocky Run Mine on private land and to move mining equipment and supplies.  The plaintiffs claim that the Forest failed to consult with the Fish and Wildlife Service or follow procedures to comply with NEPA.  Plaintiffs assert:  “Without the Forest Service’s authorization of the Permit, the Applicant would not be able to operate Rocky Run Mine. Surface coal mining operations, such as Rocky Run Mine, can cause significant environmental damage, including erosion, sedimentation, pollution of ground and surface waters, contamination of soils, loss of habitat, and loss of biodiversity.”  (The article includes a link to the complaint.)

New lawsuit:  Alliance for the Wild Rockies v. Vilsack (D. Montana)

On January 11, five conservation groups filed a lawsuit against the Mud Creek Vegetation Management Project on the Bitterroot National Forest, which could take place over up to 20 years and would involve 13,700 acres of commercial logging, 26,000 acres of non-commercial logging, 40,000 acres of prescribed burns, and the building of around 40 miles of temporary and specified roads.  It is another challenge to “condition-based” NEPA (based on an EA):  “Rather than surveying the project area and analyzing site-specific information to determine which management activities are appropriate to which area before approving and finalizing a project, the Forest Service approved all logging and burning over large swaths of the Project area, leaving the actual decision of what is appropriate until after the project is finalized, when the public may no longer participate in the decision-making process.”  The complaint also challenges the continued use of project-specific amendments to the forest plan for road density and old growth, and failure to use the forest plan definition of old growth.  There are also ESA claims related to bull trout and whitebark pine.  (The article includes a link to the complaint.)

BLM/NPS

Amicus curiae briefs filed in American Forest Resource Council v. U.S.A. (Supreme Court)

On December 18, members of Congress and six organizations filed amicus curiae briefs in support of a petition for Supreme Court review of two circuit court decisions upholding the Obama-era expansion of the Cascade-Siskiyou National Monument and the Bureau of Land Management’s 2016 Resource Management Plans for Western Oregon O&C lands.  In April, the 9th Circuit decided Murphy Company v. Biden (discussed here), and in July, the D. C. Circuit decided the AFRC case.  These courts held that the Antiquities Act could be used to designate a national monument that reduced the area of O&C lands where timber may be produced, and that the BLM can eliminate timber production on such lands.  (Links to the briefs are included.)

New lawsuit:  Blue Ribbon Coalition v. Bureau of Land Management (D. Utah)

On December 22, The BlueRibbon Coalition, Colorado Off-Road Trail Defenders and Patrick McKay, who is the vice president of the latter organization, filed a complaint in federal district court after the Interior Board of Land Appeals denied their stay request in that administrative hearing.  They are challenging the BLM’s travel management plan and EA for the Labyrinth Rims/Gemini Bridges Travel Management Area, which would close 317 miles of routes that were previously open to motorized use in the 300,000 acre area because vehicles posed a danger to sensitive habitats, riparian zones and cultural sites. The complaint alleges violations of NEPA, the APA, the Dingell Act, and the Appointments Clause of the Constitution.  (The article includes a link to the complaint, the IBLA appeal, and a map of the area.)

OTHER

In late December, two lawsuits were filed against the Federal Emergency Management Agency for failing to respond in a timely manner to claims from 24 of over a thousand victims of the largest fire in New Mexico history, started by the Forest Service in 2022

A federal judge in Oregon has rejected a U.S. Department of Justice request to dismiss a 2015 lawsuit brought by young people that alleges the federal government knew the dangers posed by carbon pollution but that it has continued through policies and subsidies to support the fossil fuel industry.

A man must pay $180,000 after federal officials said he started a wildfire in the Molino Basin target shooting area of the Coronado National Forest using a shotgun loaded with flaming, incendiary rounds of ammunition.

An adjacent landowner is facing criminal charges he illegally cut down at least 299 trees that were part of the Green Mountain National Forest and were designated for protection.  He said he had removed a USFS property boundary marking Carsonite post because he believed it was inaccurate. “The tree cutting was inconsistent with the guidelines contained in the GMNF Plan.”

On January 12, Great Old Broads for Wilderness, GreenLatinos, Sierra Club and Western Watersheds Project filed an amicus brief in the 10th Circuit proceedings involving trespass claims against hunters who used a ladder to cross between parcels of public land connected at the corner.  “The public — not just hunters but everyone — should have the same right of reasonable access to their lands as private landowners have,” said Erik Molvar, executive director with Western Watersheds Project, in a press release. (The article includes a link to the brief.  We have discussed this case previously here, and the district court decision here.)

 

 

 

 

 

 

 

WEG and Oregon Wild Argue That They Can’t Afford $4600 Award to Feds Despite Joint Annual Revenues of $7.5 Mill

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Thanks to Nick Smith for this one, from the Capital Press.

Two environmental groups must pay about $4,600 of the U.S. government’s litigation expenses following the dismissal of their lawsuit against commercial thinning in southeastern Oregon.

A federal judge has ordered Oregon Wild and Wildearth Guardians to compensate the U.S. Forest Service for the cost of processing paperwork related to three disputed projects in the Fremont-Winema National Forest.

The environmental plaintiffs claimed the $4,655.80 bill would discourage similar “public interest” lawsuits in the future.

However, U.S. District Judge Michael McShane disagreed, ruling they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions.

The judge also said the lawsuit wasn’t of such extraordinary importance that the U.S. Forest Service should be barred from recovering its costs as the prevailing party.

“The court will not allow plaintiffs to hide behind the subject matter of the litigation they initiated to avoid costs Congress intended them to pay” under federal law and court rules, McShane said.

Last year, the plaintiffs filed a complaint alleging the government’s plan to commercially thin 29,000 acres under the three projects was too expansive to “categorically exclude” from environmental review.

In August, however, the judge ruled such analysis wasn’t legally required for the South Warner, Bear Wallow and Baby Bear projects under an exemption for certain habitat improvement treatments.

After the lawsuit was thrown out, the Forest Service asked to be compensated for the money paid to a third-party vendor for converting paper administrative records into searchable PDF computer files.

The environmental plaintiffs objected, arguing they’d brought the case in good faith because the agency’s implementation of forest regulations affects “the entire National Forest system,” not just the 29,000 acres in question.

“Through cases like this one, plaintiffs and other conservation organizations help ensure that federal agencies properly manage public lands and remain accountable to the public they serve,” the nonprofits said.

The government countered that environmental groups are actually encouraged to file lawsuits against federal agencies under the Equal Access to Justice, under which they can recover attorney fees and other litigation costs.

For example, Wildearth Guardians was awarded nearly $300,000 for winning a case against the Forest Service last year, the government said.

The government also pointed to recent tax filings that showed annual revenues of nearly $3 million earned by Oregon Wild and $4.5 million earned by Wildearth Guardians.

“Public information indicates that plaintiffs have adequate means to pay for the modest bill of costs here,” the government said.

The judge said legal precedents allow him to consider the financial resources of plaintiffs, but in this case they’ve “not demonstrated that a severe injustice will result from an award of costs.”

Oregon Wild and Wildearth Guardians had previously appealed the underlying decision to allow commercial thinning on 29,000 acres to move forward.

The groups have now amended their filing with the 9th U.S. Circuit Court of Appeals to also challenge the government’s $4,600 award.

High Litigation Rates for Energy Projects: Bennon and Wilson (2023)

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Michael Bennon at Stanford with Devon Wilson authored this interesting NEPA study.

Here are a few of their conclusions:

We observe predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation. The highest litigation rate is in solar energy projects, nearly two-thirds of which are litigated. Other high-litigation sectors include pipelines (50%), transmission lines (31%), and wind energy projects (38%)

If anything, and at the highest possible level, we conclude that current debates regarding the question of permitting reform are overly focused on NEPA’s administrative process and comparatively neglect NEPA’s judicial process. Judicial review of NEPA appears to significantly impact infrastructure project development in the United States, and it impacts both the projects that are litigated
and those that are not.

Although the suthors are “happy to qualify that conclusion as limited to large infrastructure projects”, I think it is also relevant to forest management projects.

As discussed herein, many prior studies of NEPA practices and environmental litigation have focused on land management agencies such as the U.S. Forest Service or the Bureau of Land Management (BLM). We aimed tofocus specifically on infrastructure projects because they differ from area management or forestry projects in terms of both the impacts of the federal actions on the environment, and the practical impacts of environmental litigation on the projects.

One thing that’s obviously very different, and not in this quote, is the role of proponents. Let’s think about a fuel treatment project.. it is mostly between people who want it (including timber folks if there is a mill around) and people who don’t want it. For the most part, loggers and mills are not making investment decisions based on a specific project making it through the litigation mill. To the contrary, geothermal, solar and wind companies are subject to the whims of interest rates, the time value of money, supply chain difficulties and so on. Their operational environment is substantially more complex, and it appears that their connections to political actors may be stronger than, for example, Tina and her family who run Tina’s Sawmill. In the Forest Service, these projects may be more like Wolf Creek or ongoing litigated projects with specific proponents.

It is possible that NEPA’s architects, even Senator Jackson, failed to foresee28 the volume of litigation that would stem from the law because the environmental law sector was nascent, almost nonexistent, at the time of NEPA’s passing.

In fact, it is remarkable that NEPA’s evolution has been so primarily driven by case law rather than executive orders or major guidance by CEQ. After the 1978 CEQ guidance changes, NEPA did not undergo another major guidance change until CEQ published another revision in 2020, which was followed by additional rulemakings in 2021 and 2022.

In the case of NEPA, that limiting principle on the scope of environmental study is not found in law. NEPA’s “opaque, constitution-like language seems to give courts enough latitude to subject NEPA documents to either the hardest of looks or the softest of glances.”43 Judicial flexibility translates to agency uncertainty, to the point that permitting time and effort may be driven less by the anticipation of environmental impacts and more by the presence of conflict, or stakeholders with the resources and motivation to litigate against the project.44
The procedural nature of NEPA litigation is a key driver of “litigation proofing” and why contentious environmental studies under NEPA tend to grow into the many thousands of pages, despite the fact that strict page limits for EISs have been recommended by CEQ guidance since 1978. When asked to review NEPA studies, courts are deferential to federal agencies on their substantive determinations.46

On the question of limitations for its judicial reviews of agency NEPA decisions, the court in the Calvert Cliffs’ decision stated: “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgement for that of the agency.”

I keep reading that, but that’s not my lived experience. For example, I remember courts ruling that the BLM’s air quality model should not have been used; often courts weigh in on scientific controversies against the agency position. It’s entirely possible I’m missing something important and legal here, so maybe legal folks can enlighten me as to some kind of overall pattern in agency deference. Anyway…

They are far less deferential when considering topics, impacts, or alternatives that were not included in the environmental study. This dynamic can create a game of “cat and mouse” for project opponents and federal agencies, in which potential litigants try to identify and comment on alternatives or impacts that were not studied, and federal agencies are left to study everything as a means of litigation-proofing their environmental study.

Yes, cat and mouse, and sometimes it feels like judges “bring me a rock, no not that rock” to the agencies.

What the authors have to say about the “denominator” issue

Additionally, many prior studies have taken a very broad approach to estimating the prevalence of NEPA litigation. They do so by dividing the number of cases filed under NEPA (on average just over 100 annually) by the total number of agency actions that could be subject to NEPA litigation, which includes CEs and EAs (on the order of tens of thousands of actions). Most of those estimates rationally find that the litigation rates associated with NEPA are “exceedingly low.”130
Yet, we find such a calculation underwhelming, and especially so for our purpose, which is to study the impacts of the NEPA process on infrastructure development. The rate of NEPA litigation against all NEPA actions is less useful in part because the distribution of actions is extremely skewed. CEs constitute the vast majority of federal actions (upwards of 99%), and most of these permits are relatively short in duration for relatively minor actions.

This is an interesting observation.

We can generalize a bit and classify what we observe as two distinct but overlapping strategies for navigating federal environmental permitting: one that accepts a higher degree of litigation risk and thus has shorter permitting timelines but also higher rates of litigation, and another that has very long permitting timelines, perhaps due to litigation-proofing, and thus relatively lower rates of litigation. The question of which of these “strategies” is optimal would likely be determined by a wide range of unique circumstances of the environmental impacts, politics, and economics of a specific project.
However, we do note that in the sectors with higher rates of private investment in predevelopment, project sponsors appear to accept more permitting risk and to complete permits faster.

And something I’ve argued for:

The litigation databases that we used for this study are naturally oriented toward their users, or attorneys, and thus focused on published cases and legal precedent. Empirical research is much more challenging to conduct, especially in the many cases that do not result in a published opinion, or which are resolved via settlement. The result is a lack of transparency in many of the most important decisions regarding our public works and their mitigations, because many of those decisions are made during litigation settlement negotiations or during negotiations with stakeholders in the shadow of their threats of litigation.
It is in the public interest for transparency to be significantly increased in NEPA litigation and for other costs and litigation associated with the permitting of infrastructure projects. Recent legislative proposals have included transparency requirements addressing only minor, direct costs, such as the agency expenses to prepare an environmental study. A better alternative would be a requirement for federal agencies to publish online all documentation associated with project litigation during predevelopment, alongside the (already) publicly posted environmental study for the project. Given the public interest in project litigation, agencies should also be required to publicly disclose litigation documents instead of leaving journalists and the public to contend with and pay for federal court records.

Finally, here is their chart of kinds of projects they studied, litigation rate, average permit duration and counts.

Bipartisan Policy Center Ideas for Reforming Judicial Review: What Do You Think?

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I first ran across The Bipartisan Policy Center when I read their comments on the USDA Climate Smart Forestry and Ag comment request. I was impressed by their work, especially since we don’t usually see them in the forest space. Students: there appear to be many spring internships with them.

Anyway, this fall they published  “Reforming Judicial Review for Clean Infrastructure:  A Bipartisan Approach.”

BPC has had three roundtables thus far with experts from across the political spectrum.

This roundtable was the third in a series on permitting. The first roundtable focused on public engagement, and the second focused on permitting linear infrastructure (i.e., transmission and pipelines). The goal of this roundtable was to foster robust discussions on reforming the judicial review process related to permitting, with participants weighing the pros and cons of a variety of policy proposals from across the political spectrum.

According to a forthcoming study of 355 of the largest energy and transportation projects between 2010 and 2018, solar energy projects experienced the highest litigation rate, with nearly two-thirds facing a claimed National Environmental Policy Act (NEPA) violation. Transmission and wind energy projects similarly face higher-than-average rates of litigation, as well as light-rail transit projects. Maintaining opportunities for people to file meritorious lawsuits against projects that have the potential to unduly harm the environment or communities is vital. Nevertheless, the status quo prevents the accelerated build-out of desperately needed infrastructure, all while increasing costs and discouraging investment.

Since many of us have experience with lawsuits (on the USG and plaintiff sides) I’m curious as to what you think about these.  I put my opinions below each one, more to prime discussion than anything else.

(1) Option: Reduce the Statute of Limitations

Under current law, initial lawsuits can be filed for up to six years after final permitting decisions. Participants generally agreed on the value of reducing that time frame.

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Current proposals in Congress vary for placing time restrictions on legal challenges, ranging from 60 days up to three years. Some participants advocated shorter time limits, while others wanted to ensure that affected communities would have a longer period to file lawsuits. Although no consensus on a specific time frame was reached, the majority felt that a deadline of two years or less to file suit was acceptable, and most were comfortable with a statute of limitations under one year.

I like two years, seems like most file by then anyway in our world.

(2) Option: Reduce Standing 

One proposal raised by participants, similar to a provision in H.R. 1 passed by the House of Representatives earlier this year, is to limit eligibility to those who raised concerns during the public comment period in the administrative process: If a person or group did not express their concern during the process designed to receive such comment, then they would not be able to petition the courts after the administrative process ended. Some participants expressed concern that such limitations could shut persons out directly affected by a project but were not aware or able to participate in the administrative process. Participants also noted that if this change were adopted, agencies would need to do a better job advertising and make the public comment process accessible.

This has always seemed like a no-brainer to me, since people who can afford lawyers tend to also track projects pretty well.  However, I suspect different agencies do better and worse at public engagement.

(3) Option: Elevate Litigation Filed after Final Agency Actions Directly to U.S. Courts of Appeals

One proposal that received near unanimous support at the roundtable was to elevate litigation directly to an appeals court following the administrative process. This option would speed up the entire litigation process by bypassing district courts and eliminating a step in the judicial process. Because litigation under NEPA is essentially an appeal of a government agency decision, participants agreed that moving directly to a court of appeals would streamline the process without undermining the rigor or thoroughness of judicial review.

I don’t see a downside to this..

(4) Option: Establish a Technical Court with Jurisdiction Over Federal Permitting Decisions

Another proposal that received general backing is the establishment of a single technical federal court with jurisdiction over American Procedure Act reviews and NEPA decisions. This court would have the expertise to address these cases in an effective and timely manner. Participants noted that the U.S. Court of Appeals for the D.C. Circuit already has environmental review expertise and could play this role well. Participants also noted that sending appeals directly to a single technical court would solve the issue of court shopping. Overall, participants agreed that this would be an effective solution that would provide certainty to project developers and appropriate judicial review.

I like this one, as I’ve said before, it would be easier for practitioners to track case law and perhaps make for more consistent case law.

(5) Option: Establish a Permitting Review Board for Energy Projects

Similar to the Environmental Protection Agency’s Environmental Appeals Board, an independent technical appeals board consisting of judges would act as a forum for parties to appeal permitting decisions for energy projects. After a final permitting decision is issued, rather than filing an appeal with district courts, litigants could appeal to a review board that attempts to resolve disputes between the parties. If the board is unable to resolve a dispute, the appealing party can raise their concerns to U.S. Circuit Courts of Appeals. The review board could help concentrate permitting expertise in a single independent body and expeditiously resolve disputes. However, some roundtable participants added that appointments to this board would need to be handled with care to avoid it becoming politicized.

If this is important for climate mitigation (renewable energy) why not climate adaptation.. say fuels and prescribed burning projects?  I like the “resolving disputes” aspect rather than “remandng for more paperwork.”

(6) Option: Setting Court Deadlines

A proposal that participants found appealing was to set deadlines for court actions, such as requiring court decisions on federal permitting challenges within a time frame designated in statute. However, there was skepticism as to whether the legislative branch’s decision to place time restrictions on the judiciary would withstand constitutional scrutiny, or whether the deadline would be enforceable.

Constitutional dogs usually won’t hunt.

(7) Option: Setting Deadlines on Agency Remand

Some participants proposed requiring courts to set deadlines for agency action when the judges remanded a decision. (A remand is when the courts send the decision back to the agency for further consideration, or when a judge vacates a permit, which means the courts invalidated or canceled the permit.) In these cases, deadlines for agency action would provide needed certainty on the timeline for next steps for developers. However, as with the previous option, participants questioned whether requiring courts to set agency deadlines would withstand constitutional scrutiny. Congress could, however, set agency deadlines for agency action following remand, though a deadline set in statute would have less flexibility than one set by a court for a specific action under review.

Most agencies don’t kick back and take a break with a remand anyway, so I don’t know what deadlines would help with.

(8) Option: Narrowing the Scope of Decisions

Participants broadly supported narrowing judicial outcomes by directing the courts to specify aspects of review requiring additional analysis, revision, or remand. By specifying the particular aspects requiring attention, agencies  can focus their efforts on rectifying specific deficiencies without the need to entirely vacate permits. This would streamline the process and promote more efficient decision-making. The familiarity of this procedure to the D.C. Circuit also garnered support, as it builds upon existing practices that have proven to be effective in addressing complex regulatory challenges.

I think they already do this to some extent in our world. Not sure I understand when and when not. Maybe our legal friends can help us out here?

(9) Option: Direct CEQ or the Permitting Council to Develop a Public Database of NEPA Lawsuits

Roundtable support was strong for the Council on Environmental Quality (CEQ) or the Permitting Council to establish a public database of NEPA lawsuits that would include information about timelines for both filing of initial claims and total length of the judicial review process. CEQ previously tracked such data, but it stopped doing so in 2013. One participant stressed that transparency is critical for accountability.

Duh. Transparency is also critical for coherent public policy, as well as useful policy discussions and writing of papers.

Secretary Vilsack Has New Idea for Permitting Reform: Create Specialized Court System for Project Reviews

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Shout out to E&E news reporter Yachnin  for attending and finding interesting stuff at the WGA Meeting! Governors of different parties agreeing on stuff and trying to solve problems together is well worth some reporting IMHO.

I like the Vilsack idea because it’s not just about NEPA, but would seemingly help make consistent case law around ESA, climate analysis, scientific controversies and so on that seem to be decided more or less randomly by different courts in different cases. And we don’t know if it was Vilsack’s idea or one of his staff, or someone at OGC or at the FS, but still how often do we hear new outside-the-box ideas in this space? Also if the issue is litigation, the tweaks in the so-called Fiscal Responsibility Act and the proposed CEQ NEPA Regs are either not helpful, or in the wrong direction.  I’ll post a few more posts on various efforts and studies in the next few weeks, but props to Vilsack for saying the “L” word out loud.

From this E&E News story:

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When it comes to speeding up often lethargic legal challenges to environmental reviews, Agricultural Secretary Tom Vilsack is floating a novel idea: Create a specialized court system.

Vilsack raised the concept Tuesday in remarks to the Western Governors’ Association at its annual meeting in Jackson Hole, Wyo., where conversations among state officials often turned to possible reforms of the National Environmental Policy Act.
The Biden administration is weighing how to reshape the nation’s bedrock environmental law to streamline environmental permitting and speed the process of reviews.
“The challenge is no matter what you do, somebody always disagrees with it and you have litigation,” Vilsack said.

“Sometimes it’s litigation because people think you should be doing more, and sometimes people think you should be doing a heck of a lot less.”
Preempting his own idea by asserting it is “probably not feasible,” Vilsack then went on to propose a NEPA court system — akin to admiralty courts, which apply maritime laws — that “would essentially be responsible for adjudicating those decisions.”
“I think you’d get greater consistency with people who do this every day,” Vilsack said “You’d have precedent, people would understand what the rules are. You wouldn’t have the forum shopping that takes place in this circumstance.”

Plus you might have some kind of consistent case law for NEPA practitioners to aim for..

Such a court system could potentially serve to balance environmental protections with a need to speed up the often lethargic process, Vilsack said.
“It seems to me that until you deal with the issue of litigation and trying to figure out ways to streamline it in a way that doesn’t interfere with the quality of the analysis and assessment, you’re going to continue to be stuck with taking forever for things to get done,” he said.
The idea appeared to spark the interest of several officials at the meeting, including Utah Gov. Spencer Cox (R), whose response to Vilsack prompted audience laughter. “That makes far too much sense, and there’s no way it could ever happen,” Cox said.
Wyoming Gov. Mark Gordon (R) revisited the idea during a Wednesday panel on infrastructure permitting, describing a separate legal system as “provocative.”
“There is a tendency to try to find the best court to bring a particular action in NEPA,” Gordon said.
New Mexico Gov. Michelle Lujan Grisham (D) responded to Gordon, noting that the idea would require both dedicated funding and training, and pointing to failures in the immigration court system.
“If we’re not willing to take on controversial ideas that are provocative, then we aren’t going to solve problems,” Lujan Grisham said. “I think there’s a there, there. I don’t know exactly what it is.”
She later added, “If we have a stalling aspect, we should figure out a way so that it is a fair objective review, so that we get guidance about where to go and not a situation that continues to stall us out all across the country.”

I’m not sure that it would take any more funding or training, we’re already doing all the work but in a less coherent fashion.

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I did get a chuckle out of the link in the above article to another E&E news article about the proposed CEQ NEPA regs that I wrote about earlier this week.

NEPA experts are still poring over the 236-page draft document. But several said the changes are an encouraging step toward broader permitting reform, balancing efficiency and environmental risk — while staying consistent with the underlying law and court precedent.

“I don’t see a lot of legal risk” to CEQ, said Max Sarinsky, a senior attorney at New York University’s Institute for Policy Integrity.

He described the draft as “meaningful” but “also fairly modest and incremental.”

Well, I’m glad NYU has an Institute for Policy Integrity as opposed to .. I don’t know.. whatever the opposite of integrity is? But it’s OK because foundations are funding them, many of the usual suspects..and even our own tax dollars via EPA.  Now everyone knows I like lawyers and economists (especially forest economists and lawyers), but if we want to provide things like energy to people who need them, I think we’ll need more expertise at the table, or in the university, or at the think tank, or in the White House than those who generate analyses and lawsuits.   Because generally lawsuits are good at slowing down things that are bad (to some). I’m not sure that they’ve ever speeded up things that are good (to some).

Public Lands Litigation – update through November 3, 2023

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FOREST SERVICE

Conviction overturned

The 4th U.S. Circuit Court of Appeals has overturned the conviction of a man who burned 70 acres of the Nantahala National Forest in 2020.  The circuit court stated that testimony regarding his knowledge of where he was should not have been excluded by the trial court:

“We conclude that specific knowledge of federal ownership is not required for conviction … Therefore, the Government did not have to prove that Evans knew he was on federal land or intended to burn federal land. But the Government did have to prove that Evans acted willfully, and an honest mistake of fact about whether he was burning brush on his own property would be a viable defense… Evans explained his family’s long ownership of property abutting the Nantahala National Forest and his understanding of the boundary lines based on certain markers on the property.”

New lawsuit

A wrongful death lawsuit filed by relatives of three people killed by flash flooding after the Hermit’s Peak/Calf Canyon fire on the Santa Fe National Forest in 2022 alleges that the Forest Service was negligent in failing to close roads or properly warn people of the risks of flash flooding.  The fire began as a planned burn. The Forest Service found in a report released later in 2022 that it underestimated the amount of fuel available to the fire and did not adequately account for dry conditions or the risk to nearby communities.

Court decision in Western Watersheds Project v. McKay (9th Cir.)

On October 26, the court of appeals reversed a lower court ruling, and vacated the Fish and Wildlife Service’s biological opinion supporting the Fremont-Winema National Forest’s approval of expanded cattle grazing.  It found the BiOp deficient because it did not account for climate change as a baseline condition or a cumulative effect or take it into account in developing mitigation strategies (which were not certain to occur).  The BiOp “altogether failed to engage with information in the record suggesting that climate change would affect water levels and streamflow.”  The court upheld the grazing decision’s compliance with NEPA and the forest plan.  (The article includes a link to the opinion.)

Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Ariz.)

On Halloween, the district court dismissed NEPA claims against the 2023 Salt River Horse Management Plan on the Tonto National Forest and a 2017 Intergovernmental Agreement with the State of Arizona.  The claim against the IGA was moot because the Agreement had expired.  The claim against the 2023 Plan was not subject to NEPA because it involved no federal action since the forest supervisor had not approved the Plan.  Plaintiffs had asserted that ongoing harm to wildlife is occurring in the affected area because of delay in reducing the horse herd to numbers recommended by a collaborative associated with the IGA.

Maybe some of you, like me, are not very familiar with the wild horse issues on federal lands or the unique federal laws applicable to wild horse management.  I found this article in the Sierra Club’s magazine to be helpful.  Here’s their summary of those laws; while the article is about the BLM, the Forest Service is subject to the same requirements:

In 1959, Congress passed the Wild Horse Protection Act, which banned the hunting of feral horses from aircraft and motorized vehicles on federal land. More expansive protections followed. Wild horses became federally protected under the Wild Free-Roaming Horses and Burros Act of 1971, which gave the BLM power to manage horses in specific herd-management areas, enmeshing the animal in the BLM’s maxim of multiple use. With the new regulations in place, wild-horse numbers quickly increased, so Congress passed the Federal Land Policy and Management Act of 1976, allowing helicopter roundups. Two years later, the Public Rangelands Improvement Act created the adopt-a-horse auctions and required the BLM to set specific population levels for each herd-management area, which led to additional roundups and long-term holding on private ranches as the approved way we get horses off the range.

 

BLM

Court decision in Western Watersheds Project v. U. S. Department of the Interior (D. Nevada)

On October 18, the district court denied motions for a temporary restraining order and a preliminary injunction against the South Spring Valley and Hamlin Valley Watersheds Restoration Project, which would include removal of pinyon and juniper trees, direct sagebrush treatment, and prescribed fire to restore the landscape to reference conditions and benefit sage-grouse.  The decision for the 384,414-acre area was based on an EA.

The court found plaintiffs did not demonstrate a likelihood of success on their NEPA claims. The complaint argued that the Project is “deferring critical decisions about siting and treatment methods to the future with no additional NEPA review.”  The court held that the record “describes the maximum number of acres to be treated; percentage of vegetation to be treated; and divides the watersheds into thirteen treatment units, categorizing each unit into one of four treatment categories based on the vegetative conditions and treatment objectives” (comparing it favorably to the EIS in the 8000-acre Navickas/Ashland case we discussed before here).  It considered this approach to be “adaptive management,” which is “permitted by NEPA.”  (Notably, the court approved of BLM’s statement that it, “determined that treatment within sagebrush habitats needed to be tailored depending on the potential environmental effect.”  That seems to suggest that BLM would not be done with NEPA until it has determined the actual effect.)  The court upheld the analysis of effects on wildlife and the cumulative effects of grazing in accordance with NEPA (and noted that plaintiffs, “curiously failed to challenge the failure to prepare an EIS”).

The court did find the likelihood of a legal flaw in determining compliance with the RMP’s requirement to replace lost habitats of special status species at a 2-to-1 ratio, which the BLM conceded it did not do, but upheld compliance with specific RMP requirements related to bat species and sage-grouse.   Despite plaintiff’s high likelihood of success on the one claim, the court found limited evidence of “irreparable harm” from allowing chaining to proceed, and refused to stay the Project pending a final decision in the lawsuit.  Additional discussion can be found here.

  • Alaska BLM ANWR oil and gas lease cancellation

New lawsuits

The Alaska Industrial Development and Export Authority has sued USDI over the September cancellation of seven oil and gas leases in the Arctic National Wildlife Refuge.  AIDEA claims the termination violated a statute that directs the Interior Department to award leases covering at least 400,000 acres for exploration. In canceling the leases, Interior Department Sec. Deb Haaland cited “multiple legal deficiencies in the underlying record supporting the leases.” On October 31, Americans for Prosperity filed a lawsuit regarding its FOIA request related to the same decision.

Settlement of Albany County Conservancy v. Novotny (D. Wyo.)

Three months after the BLM was sued by a local environmental group and retired Fish and Wildlife Service biologist for violating NEPA and its public participation requirements when it approved a transmission line for wind energy, the agency has decided to revisit the decision.  Plaintiffs are particularly interested in the cumulative effects of commercial windfarms of golden eagles, including 17 windfarms in Albany County.

Court decision in Center for Biological Diversity v. U. S. Dept. of the Interior (D. D.C.)

On November 1, the district court held that plaintiffs lacked standing to sue over more than 4000 applications for permit to drill (“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin.  The court required plaintiffs to prove standing with regard to each agency action rather than “”draw a line around them,” and allege that they have individual members who have a geographic nexus with “the resulting ‘APD Area.’””  They failed to, “identify individual members who use the areas affected by the challenged individual APDs.”  This article includes more background.

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Ariz.)

On November 2, the CBD along with the Maricopa Audubon Society sued the BLM and Fish and Wildlife Service for violating the Endangered Species Act by failing to protect habitat for the endangered southwestern willow flycatcher and western yellow-billed cuckoo from cattle grazing damage when it authorized seven grazing allotments along Arizona’s Gila River.  The claims are based on field surveys identifying continuing damage, apparently related to unauthorized grazing, despite previous agreements to remedy the problem.  (The press release has a link to the complaint.)

New lawsuit:  Southern Utah Wilderness Alliance v. U. S. Dept. of the Interior (D. Utah)

On November 3, plaintiffs challenged four separate decisions made in 2018-2019 by the Bureau of Land Management to offer, sell and issue for development 145 oil and gas leases covering approximately 215,325 acres of public lands in Utah’s Uinta Basin without fully and adequately analyzing the environmental and public health impacts of those decisions.  (The news release has a link to the complaint.)

 

OTHER

New lawsuit

BlueTriton Brands filed the lawsuit in October in Fresno County Superior Court, arguing in its complaint that the California State Water Resources Control Board overstepped its authority when it ordered the company to halt its “unauthorized diversions” of water from springs in the San Bernardino National Forest.  BlueTriton and prior owners of the business have for years had a special-use permit allowing them to use the pipeline and other water infrastructure; however, the Forest Service recently told the company that reissuing the permit would require proof of water rights.  The company’s argument centers on the different legal treatment of groundwater and surface water under California law.

Public Lands Litigation – update through October 20, 2023

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There are even a few court opinions dealing with plan-level decisions!

FOREST SERVICE

Court decision in Western Watersheds Project v. Perdue (D. Ariz.)

On September 29, the district court upheld the Stateline Project, reauthorizing livestock grazing for ten years on fourteen allotments on the Apache-Sitgreaves and Gila National Forests.  Plaintiffs had argued that the Forest Service violated NEPA and the APA when it authorized the Project by failing to: (1) take a “hard look” at the Project’s impacts on Mexican Wolves, the Blue Range Primitive Area, and inventoried roadless areas; (2) prepare an EIS based on the context and intensity of the Project; and (3) consider a reasonable range of alternatives (there were two:  no grazing and a 3% reduction from current AUMs).

Court decision in Blue Mountains Biodiversity Project v. Trulock (D. Or.)

On October 5, the district court upheld the Camp Lick Project on the Malheur National Forest.  The Project would harvest trees larger than the 21” limit imposed by the Eastside Screens included in its forest plan because the Malheur properly amended its plan to allow this project. Plaintiffs had argued that the issues addressed by the amendment were forestwide, so the amendment (and therefore the effects) could not be limited to particular project, but the court disagreed.  Instead the court agreed with the magistrate judge’s conclusions that NFMA “(i) does not require that the U.S. Forest Service identify a “unique” attribute present at the location of a site-specific amendment within a forest plan and (ii) does not require a finding of de facto significance whenever a site-specific amendment shares similarities with past or future amendments.”

(In response to Sharon’s question here, this opinion does not address whether removing these larger trees was necessary to reduce fire risk or what the effects of removing them would be.  That may be because the administrative record adequately addressed these issues so they were not raised by plaintiffs.)

Court decision in Helena Hunters & Anglers Association v. Moore (D. Mont.)

On October 11, the district court upheld the Helena-Lewis and Clark national forest’s revised forest plan against challenges related to grizzly bears and big game – in particular the “removal” of wildlife standards that had been in the old forest plan and would benefit these species.

Interestingly, the government attorneys tried to claim that this was an original plan rather than a plan revision, despite a record full of references to a “revised” plan, because the two national forests had been combined subsequent to the first forest plans.  The court concluded it is a revised plan, and dismissed the significance of this argument (but if it were a new plan, it would have been more difficult for plaintiffs to complain about “removal” of the wildlife standards).  The court also refused to buy the government argument that the former standards were “largely carried forward” by equally effective guidelines and desired conditions, holding that these other plan components do not have “the same strength or impact” as standards.  However, it was sufficient under ESA for the Fish and Wildlife Service to address the old wildlife standards as part of the environmental baseline, and to address the “general” effects of the revised plan without those standards.

The court held that NEPA’s requirement to look at the environmental consequences of the revised plan does not mean it has to look at the effects of individual plan components (or their “removal”).  However, it did refer to the the plan components included in an EIS for the multiple-forest Grizzly Bear Amendment that were added to the existing plan prior to the revision, and are part of the revised plan.  The court also held that the FS was not required to consider an action alternative that retained the wildlife standards, because, “Plaintiffs fail to demonstrate that the proposed alternatives are otherwise unreasonable.”

Useful word for the day (from the opinion):  “defugalty:” an inconsistency, especially with regard to forms of communication.

Court decision

On October 15, the Oregon district court dismissed an antitrust lawsuit against Iron Triangle and Malheur Lumber by a group of sawmill owners, logging contractors and timber owners who accused the defendants of engaging in anticompetitive business practices.  The court held that the 10-year stewardship contract with the Forest Service “is not an illegal conspiracy in restraint of trade.”

Best oxymoron for a business name:  Prairie Wood Products

Court decision in Gallatin Wildlife Association v. Olson (D. Mont.)

On October 19, the district court dismissed a challenge to seven grazing allotments on the Beaverhead-Deerlodge National Forest based on their effects on bighorn sheep.  This followed the Forest Service losing a prior court case involving these allotments that required additional analysis, and an EIS was pending.  Court found no unreasonable delay because the Forest was “not required to undertake agency action beyond that which already has been taken.”  The court also summarily rejected a challenge to a supplemental EIS prepared for the revised forest plan in response to another lawsuit involving bighorn sheep, and rejected a third claim because these plaintiffs had failed to raise it in their prior challenge to these allotments.

BLM

Court decision in Desert Protection Society v. Haaland (E.D. Cal.)

This case deals with the BLM’s decisions to amend the California Desert Conservation Area Plan and to grant a right-of-way to Eagle Crest Energy Company to construct, operate, maintain, and decommission a gen-tie [electrical] line and water supply pipeline.  It would run through an area that had been designated as an Area of Critical Environmental Concern in the Conservation Plan.  The larger energy project had been approved by FERC after an earlier NEPA process.  On September 29, the district court upheld the BLM’s right-of-way decision against NEPA and FLPMA claims.

The NEPA claims involved decommissioning requirements, the range of alternatives, mitigation, and effects on acid rock drainage, groundwater, wildlife and global warming (which “largely concern the FERC Energy Project and not the BLM Right-of-Way Project”).  Under FLPMA, the right-of way was not subject to other plan requirements because it was considered a “valid existing right.”  BLM also met FLPMA requirements related to balancing interests, mitigation measures, collocation of right-of-ways, and the administrative protest process.

New lawsuit:  Colvin & Son v. Haaland (D. Nev.)

On October 17, two ranchers in Nevada sued the BLM for delaying compliance with the Wild and Free Roaming Horses & Burros Act of 1971, which they say requires “immediate” removal of excess horses.  BLM data showed that current populations are far above the “appropriate management level” established by the agency.  (The article has a link to the complaint.)

Four individuals have been indicted by a federal grand jury on 13 counts of violating the Paleontological Resources Preservation Act by allegedly purchasing and then selling dinosaur bones valued at over $1 million and causing more than $3 million in damages, according to a statement from the U.S. Attorney’s Office, District of Utah.  The value represents 150,000 pounds of paleontological resources, including dinosaur bones, illegally removed from federal (BLM) and state lands in southeastern Utah sold at gem and mineral shows and sometimes, China.

FISH AND WILDLIFE SERVICE

Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.)

On September 30, the district court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle from endangered to threatened status, despite noting climate change will pose foreseeable and grave risk to the beetle’s remaining populations in the coming decades.  Ultimately, the Service proposed downlisting the species based on the agency’s conclusion in its 2019 study that the “beetle’s viability is higher than was known at the time of listing” and “it is not presently in danger of extinction.”  The species’ historic range includes forests and grasslands in the eastern half of the U. S.  (The article includes a link to the opinion.)

  • Extinction delistings

We have previously questioned whether/how national forest management has contributed to extinction of any species (where we discussed the ivory-billed woodpecker, which is still not officially on the extinction list).  Here are some other possible examples.

In the continental U. S., this list of species removed from the protection of ESA because of extinction includes eight mussel species found in the southeast, where according to USDA, “Erosion, caused in part by deforestation, poor agricultural practices, and destruction of riparian zones, has led to both increased silt loads and shifting, unstable stream bottoms.”

The list also includes the Bachman’s warbler, a black and yellow songbird found in several Southern states, including on the Francis Marion National Forest.  According to the Center for Biological Diversity, the Bachman’s warbler was also lost to destruction of its bottomland forest habitat.

OTHER

Settlement of Slockish v. U. S. Dept. of Transportation (Supreme Court)

This case involved the destruction of a Native American sacred site as part of a highway improvement project within the Mt. Hood National Forest.  The parties to the case, which included the Yakama and Grand Ronde tribes, the Cascade Geographic Society and the Mount Hood Sacred Lands Preservation Alliance, agreed that the U. S. government would plant nearly 30 trees on the parcel and maintain them through watering and other means for at least three years.  The government also agreed to help restore the stone altar, install a sign explaining its importance to Native Americans and grant tribal access to the surrounding area for cultural purposes.

A Bonner County District Judge recently upheld a decision by the Shoshone Board of County Commissioners denying a petition for road validation concerning a section of West Fork Pine Creek Road, which provides access to a section of BLM land with varying trails and roads throughout it – including “an area of specifically constructed off-road obstacles called the ‘Roller Coaster.’”  The result is that public can be denied access to public lands on this private road.

If anyone is wondering how the northern spotted owl might have fared without the protection of the Endangered Species Act, Canada is now facing that scenario.  Its Species at Risk Act requires an emergency order when an endangered species faces an imminent threat and before that threat materializes.  The scientific recommendation to do so for spotted owls in British Columbia was ignored for eight months, allowing further logging of the forest that supports the last remaining wild-born spotted owl in Canada.  A lawsuit was filed in June and heard in October.

The future of spotted owls in the U. S. might have looked like this:

“Today, however, only one wild-born spotted owl remains alive in all of Canada. Earlier this year, remains of two owls released from captivity in 2022 were found with their transmitters outside protected areas. The third was returned to the breeding centre where it is recuperating after being hit by a train…  Foy was part of a team that visited the Fraser Canyon forest sites at the end of May. He said they found logging had already started in places where critical spotted owl habitat was meant to be protected.”

 

Public Lands Litigation – update through October 5, 2023

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I wanted to wrap up the latest before my own “blogging break.”  Not a lot where the Forest Service is a party, and mostly related to the Endangered Species Act, but should be relevant and hopefully interesting.

FOREST SERVICE

New lawsuit

On September 25, Native Ecosystems Council and Alliance for the Wild Rockies filed a lawsuit in the Montana federal district court to oppose the Middleman Project on the Helena-Lewis and Clark National Forest.  The complaint says the project area encompasses 141,799 acres and includes 53,151 acres of tree cutting and burning, 46 miles of new temporary road construction and 90 miles of road reconstruction.  The effects of roads on grizzly bears, changes in mapping of lynx habitat and effects on elk habitat are issues raised by plaintiffs, who allege violations of NEPA and NFMA.

ENDANGERED SPECIES ACT

Litigation follow-up to Center for Biological Diversity v. Bernhardt (D. D.C.)

On September 28, the U.S. Fish and Wildlife Service and National Park Service released a draft plan and EIS analyzing options to restore grizzly bears to the North Cascades in Washington. This step follows the Center for Biological Diversity’s litigation challenging the Trump administration’s 2020 termination of a previous restoration plan.  The draft plan and the lawsuit complaint are linked to this news release.  (Plaintiffs refer to the litigation as “successful,” but I haven’t found a court opinion.)

Supreme Court review denied in San Luis Obispo Coastkeeper et al. v. Santa Maria Valley Water Conservation District (9th Cir.)

On October 2, the U. S. Supreme Court denied a request from the operators of Twitchell Dam to avoid measures to protect the endangered Southern California steelhead in the Santa Maria River system.  The decision leaves in place a ruling by the 9th Circuit Court of Appeals that the Bureau of Reclamation and the Santa Maria Valley Water Conservation District can release water from Twitchell Dam to comply with the Endangered Species Act.   Said ForestWatch executive director Jeff Kuyper, “With simple changes to the Dam’s water release schedule, we can give fish a fighting chance at reaching their historic spawning grounds in Los Padres National Forest while maintaining plentiful water supplies for our farms and communities.”   (The 9th Circuit opinion is here.)

New lawsuit:  Center for Biological Diversity v. Haaland (E.D. N.C.)

On October 4, plaintiffs challenged the Fish and Wildlife Service’s failure to respond to their 2016 petition to change the designation of the population of the 13 remaining wild red wolves as “non-essential” and restrict red wolf shootings by private landowners.  The Endangered Species Act defines an experimental (reintroduced) population as ‘essential’ if the loss of the population would significantly reduce the likelihood of the species’ survival in the wild.  Additional background is provided here.

  • Proposed ESA listings

Two species have recently been proposed for listing under ESA by the Fish and Wildlife Service, both after lawsuits initiated by the Center for Biological Diversity.

On September 29, the FWS proposed listing the northwestern and southwestern pond turtles, found throughout Washington, Oregon and California, as a threatened species.  They may be found at elevations up to 6500 feet.  The CBD news release is here and the Federal Register Notice is here.

On October 2, the FWS proposed listing the short-tailed snake as threatened.  The short-tailed snake has adapted to live primarily underground in sandy upland sandhill, scrub and hammock habitat in central and north Florida.  Silviculture is among the threats to its persistence.  This news release includes a link to the Federal Register notice.

On October 5, the Fish and Wildlife Service listed the Lassics lupine as endangered, and designated 512 acres of critical habitat on the Six Rivers National Forest.  It is found at high elevations only along the California-Nevada border.  Said Vicky Ryan, of the Arcata Fish and Wildlife Office, “We’re grateful for our partnership focused on Lassics lupine conservation and habitat management with Six Rivers National Forest.”  The article includes a link to the notice (and it does not mention the Center for Biological Diversity).

On September 26, President Biden vetoed two Republican-sponsored Senate joint resolutions seeking to undo Endangered Species Act protections for the northern long-eared bat and the lesser prairie-chicken, which became effective in January, 2023.  While the prairie chicken is primarily found on private, non-forested lands, the effect of up-listing the bat to endangered status could affect logging and federal lands.  (This legislative procedure is authorized by the Congressional Review Act.)

IRONIC HEADLINE OF THE MONTH:  “PRESCRIBED BURNS PLANNED FOR SMOKEY BEAR RANGER DISTRICT”