Litigation

Recent Endangered Species Act Litigation – August 2023

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The York fire burns Joshua trees in the Mojave National Preserve in California on Sunday, July 30.                                                                                                 Ty O’Neil/AP

Court decision in Wilderness Watch v. U. S. Fish and Wildlife Service (D. Mont.)

On August 2, the district court granted a preliminary injunction against the construction of a pipeline (including heavy machinery, temporary roads and disturbance of the land) to benefit Arctic grayling in the Red Rock Lakes Wilderness of in a national wildlife refuge in southwestern Montana.  The court held, “Ultimately, in light of the Wilderness Act’s strict requirements, the mere possibility that the proposed action may aid in Arctic grayling conservation is not enough to create necessity.”  The possible availability of alternatives that would not affect the wilderness character was also a factor working against a finding of necessity.  (The article has a link to the opinion.)  A lawsuit against the FWS decision to not list the grayling as threatened or endangered is pending (described here).

Notice of Intent to Sue

On August 3, WildEarth Guardians notified the U. S. Fish and Wildlife Service of its intent to sue the agency for denying its petition to list the Joshua tree under the Endangered Species Act.  The FWS decision followed a previous lawsuit where their previous denial was reversed due to inadequate consideration of the effects of climate change.  This notice cites climate-related wildfires and lack of regeneration.  (The press release includes a link to the Notice.)

Settlement of Red Wolf Coalition v. U. S. Fish and Wildlife Service (E.D. N.C.)

On August 9, the FWS, Red Wolf Coalition, Defenders of Wildlife and Animal Welfare Institute signed a stipulated settlement agreement to resolve this case filed in 2020.  This followed a preliminary injunction against a 2015 agency policy prohibiting the release of captive red wolves into the Red Wolf Recovery Area (focusing on the Alligator River National Wildlife Refuge) where the court held, “reversal of the prior policy to release captive red wolves into the wild population and engage in proactive and regular adaptive management to address coyote hybridization have had significant adverse impacts and will hasten the extinction of red wolves in the wild.”  The FWS agreed to cooperatively develop and publicize red wolf release plans for the next eight years.  (This article includes a link to a press release that links to the settlement agreement.)

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (M.D. Fla.)

On August 9, CBD and Nokuse Education, Inc. sued the FWS for denying protection to the gopher tortoise under the Endangered Species Act, stating, “Unfortunately, a mere three percent of the gopher tortoise’s historical longleaf pine ecosystems currently remain, and all upland habitats frequented by the tortoise are steadily being degraded and destroyed by encroaching development, poor habitat management, and climate change.”  Gopher tortoises in parts of Louisiana, Mississippi and western Alabama are currently protected, but those in in Florida, Georgia, South Carolina and most of Alabama are not.

Court decision in Center for Biological Diversity v. Haaland (D. D.C.)

On August 11, the district court agreed with plaintiffs that, while the Fish and Wildlife Service had created plans for three wolf subspecies, those plans are in three distinct regions of the United States (northern Rocky Mountains, Mexican wolf and eastern timber wolf) and left 44 states where the gray wolf is listed as endangered without a wolf recovery plan.  The judge refused to dismiss the case against the FWS, but the ultimate relief has not been determined.  The ruling would not directly impact wolves in Alaska, or the northern Rocky Mountain states of Idaho, Montana and Wyoming, as well as wolves in certain portions of Oregon, Washington and Utah.

Court decision in Natural Resources Defense Council v. U. S. Fish and Wildlife Service (D. D.C.)

On August 11, NRDC prevailed for a fourth time in its pursuit of protection for the rusty patched bumblebee.  This time a court invalidated the determination by the FWS that designation of critical habitat would not be “prudent,” an exception sometimes allowed by ESA.  The bee is native to the upper midwest, and has been found on the Chippewa National Forest.

 

A success story or a future lawsuit?

The U.S. Fish and Wildlife Service has proposed to remove the Apache trout from the list of threatened species.  It is found in the White Mountains on the Apache-Sitgreaves National Forest, and the Forest Service is credited with assisting the White Mountains Apache Tribe and others with habitat restoration and non-native fish removal to support recovery of the species.

“There’s been good progress toward bringing Apache trout back from the brink of extinction, but it’s way too soon to strip protections for these remarkable fish,” said Robin Silver, of the Center for Biological Diversity. “Their habitat has been hammered by grazing and fires, and they won’t survive without the Endangered Species Act’s safeguards. Non-native trout and growing dangers from climate change also jeopardize the trout’s survival.”

 

More on the North Big Bear Landscape Restoration Project and Hanson’s Views

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Thanks to Jon for another excellent litigation round-up on Friday!

Both Larry and I are familiar with the San Bernardino National Forest. Both of us were dubious as to Hanson’s claim this project involves fuel treatment “in the remote wildlands” . So I looked up a map for the project.

From

From this map, you can see the miles from the project to WUI areas. But if you aren’t aware of the built environment around Big Bear Lake, here is a Google map

The Decision Notice had some nice descriptive photos, so here they are:

 

 

When I’m working on MOG and hear “leaving things alone is best for carbon” I think of places near my house that look something like the next two photos.

Personally, I’d like Mr/Ms Old Growth Jeffrey to survive a fire.

The project’s around 12K acres of treatment and has a 49 page EA.  The separate response to comments is 21 pages; it has many specific answers to various scientific studies submitted in the comments. This project also has its own fairly extensive monitoring plan.

Here’s what Hanson says in an LA TV news story.

According to the lawsuit, the last time the San Bernardino National Forest conducted a similar restoration project was in the early 2000s, prior to the devastating Grass Valley Fire of 2007 that burned 199 homes.

Hanson said such an approach makes homeowners in the wildlands subject to even greater fire risk. He said the Forest Service should instead focus on making 100-foot perimeters of defensible space around homes in the forest.

“When they remove a lot of trees it actually makes the fire burn faster through those areas, and that often times is toward towns,” Hanson said.

I think this is something different from usual, a bit of an escalation,  from “fuel treatments don’t work” to “sure less fuels mean big trees don’t die, but the fire itself can move along the ground faster and go toward towns.”  That’s not fire suppression folks’ experience but…the FS couldn’t speak to reporters due to litigation.   So the reporter had to poke through the documents. Which is kind of a painful way to get info for someone on the clock.

Seems like we as a community (at least those of us who support fuel treatments) should be able to do better in terms of being able to talk to reporters.  In the old timber wars days, reporters could always call AFRC- but when there’s no timber, now there’s no one for reporters to call.   Perhaps something to work on.  People Living With Wildfire? Wildfire Adaptation Network?.. Conservationists for Wildfire Adaptation? No, it needs a good acronym.

 

Public Lands Litigation – update through August 17, 2023

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FOREST SERVICE CASES

Court decision in Alliance for the Wild Rockies v. Marten (D. Mont.)

On August 3, the district court found that consultation with the Fish and Wildlife Service on the recently revised Helena-Lewis & Clark forest plan did not properly account for the “amount and effects on grizzly bears of unauthorized motor vehicle access, failures of road closures, and roads that were supposed to be closed according to travel plans on the Forest that are still physically open.”  The analysis ignored substantial available evidence of motorized use of roads that were considered closed in the analysis, and it significantly underestimated both the amount of actual road use and the impacts on grizzlies.  The court required reinitiation of consultation on the forest plan, as well as for four travel management plans for road-related effects.  For two of the travel plans, this was required to address new information about unauthorized motorized use, and the other two violated incidental take requirements by counting physically open roads as closed.  (The article includes a link to the opinion.)

Court decision in Idaho Conservation League v. U. S. Forest Service (D. Idaho)

On August 4, the district court upheld the Caribou-Targhee National Forest’s second try at authorizing Excellon Idaho Gold’s Plan of Operations for the Kilgore Gold Project.  The court found that an EIS was not necessary and that the EA adequately addressed impacts, primarily related to water.  It also found no substantive violation of the Forest Service’s Organic Act.  (The article links to the proponent’s website for a link to the opinion.)

Court decision in Oregon Wild v. U. S. Forest Service (D. Or.)

On August 4, the district court allowed the Fremont-Winema National Forest to proceed with nearly 30,000 acres of logging under the categorical exclusion from an EIS for “timber stand and wildlife habitat improvement.”  We discussed that here.

Court decision in Appalachian Voices v. U. S. Department of the Interior, The Wilderness Society v. U. S. Forest Service, Wilderness Society v. Bureau of Land Management (4th Cir.)

On August 11, the circuit court dismissed this long-running case in response to Congressional intervention, but not without two concurring opinions criticizing the process.  (The article has a link to the opinion.)  “I think this is the end of the potential legal challenges, really, when it comes down to it,” said attorney Jared Margolis of the Center for Biological Diversity, one of several groups challenging the project in court.

But wait!  Private owners of land the pipeline would cross continue to contest the use of eminent domain on their properties.  They now argue that Congress cannot deprive them a constitutional right of judicial review of FERC allowing private companies to condemn their private property for the pipeline.

New lawsuit:  Friends of the Big Bear Valley v. U. S. Forest Service (C.D. Cal.)

On August 15, three environmental groups, also including The John Muir Project and the San Bernardino Valley Audubon Society, filed a lawsuit against the North Big Bear Landscape Restoration Project on the San Bernardino National Forest.  They allege violations of NEPA, NFMA and administrative objection regulations. Chad Hanson characterizes the disagreement as about whether fuel reduction should occur “in the remote wildlands” or immediately around homes.  (The article includes a link to the complaint.)

Notice of intent to sue

On August 17, the Center for Biological Diversity filed a notice of intent to sue the Forest Service and Fish and Wildlife Service over the Mud Creek Project on the Bitterroot National Forest.  The project would arguably affect listed bull trout and pioneering grizzly bears, recently reappearing in the Selway-Bitterroot recovery zone.  The news release describes a condition-based environmental analysis: “The Forest Service approved the timber sale without identifying the locations, timing or scope of the logging units or roads. Instead, the agency said it will make those decisions when crews are on the ground, which inhibits analysis of potential harm to protected species and prevents public involvement.”  (The news release includes a link to the NOI.)

Court decision in Center for Biological Diversity v. U. S. Forest Service (and a consolidated case) (D. Mont.)

On August 17, the district court vacated the Kootenai National Forest’s decision on the Black Ram vegetation management project because it violated NEPA, ESA and NFMA.  The issues primarily involve grizzly bears in the Cabinet-Yaak recovery zone, their declining population and the effects of unauthorized motorized use.  (The article includes a link to the opinion.)

While the Payette National Forest considers a proposal to reopen and expand operations of the Stibnite mine (gold, silver, antimony), the new operator has settled a Clean Water Act lawsuit by the Nez Perce Tribe related to ongoing pollution from the existing mine on patented private land.  Perpetua Resources will pay $5 million to the Tribe to fund water quality improvement projects on the South Fork of the Salmon River and cover litigation costs.  The settlement leaves unanswered the degree to which the company is or is not responsible for legacy pollution at the site.  (The Forest Service was not a party to this case.)

Criminal conviction under the Archaeological Resources Protection Act of 1979

ARPA is a federal law that governs the excavation of archaeological sites on federal and Indian lands in the United States, and the removal and disposition of archaeological collections from those sites.  The defendant in this case was convicted of using a tractor to illegally excavate an archeological site within the Desoto National Forest that had been designated as a protected site because it contained material remains of past human activities that are of archeological interest.  (Sentencing has not yet occurred, but the indictment sought forfeiture of his Massey Ferguson tractor.)

BLM CASES

New lawsuit:  Southern Utah Wilderness Alliance v. United States Department of the Interior (D. Utah)

On July 31, SUWA challenged the BLM’s authorization of the Sevier Playa Potash Project, near Sevier Lake (south of, and similar to, Great Salt Lake), alleging NEPA violations.  Potash is used in fertilizer, and world supply has been disrupted by the war in Ukraine.  Plaintiffs would have supported development of the southern portion of the project, which would avoid impacting wetlands.

Court decision in Western Watersheds Project v. U. S. Bureau of Land Management (10th Cir.)

On August 7, the circuit court affirmed the lower court’s approval of the BLM’s decision to allow Jonah Energy to drill 3500 natural gas test wells over 10 years in the “Path of the Pronghorn” (discussed here) and sage-grouse habitat, and its compliance with the “National Environmental Protection Act.”  Applications for permits to drill will still need to address site-specific effects.  (The article has a link to the opinion.  This article discusses the claims in more detail.)

Court decision in Western Watersheds Project v. U. S. Bureau of Land Management (D. Ariz.)

On August 9, plaintiffs were given partial relief in response to their lawsuit over BLM’s management of livestock grazing in the Sonoran Desert National Monument.  This is the second time a court has remanded the 2012 resource management plan due to flawed assumptions in the analysis of the effects of grazing (pursuant to NEPA).  The court upheld compliance with the National Historic Preservation Act and the Federal Land Management Policy Act.  (The article contains a link to the court’s order.)

The FLPMA claim included various substantive allegations that the RMP “failed at the programmatic level to protect Monument objects.”  The court concluded that grazing decisions were similar to the logging decisions addressed by the Supreme Court in the Forest Service Ohio Forestry case, and since site-specific protection could still occur, the question of adequate protection would not be ripe until a specific grazing project is proposed.  Here is the court’s understanding:

“Plaintiffs argue that BLM’s decision to “punt grazing management to future allotment-level decisions” will obscure larger-scale impacts of grazing across allotments, but the record does not reflect that BLM would make implementation-level decisions without considering each decision’s impact on the Monument as a whole.”

  • Wild horses

A federal judge in a Nevada case has allowed a wild horse gather to continue despite the deaths of 31 horses among 2500 gathered.  He could not find “there are inhumane treatments with these incidents.”  A representative of the plaintiff Wild Horse Foundation gives their perspective here.  Among other things, they’d like to see more management planning for habitat preservation.

A new lawsuit has been filed in Oregon by The Cloud Foundation seeking more transparency in wild horse roundup activities.  The plaintiff is pushing for the use of non-obtrusive cameras at all aspects of the roundup including on helicopters, at trap sites, and temporary holding pens.

OTHER CASES

Court decision in Garfield County v. Biden (and a consolidated case) (D. Utah)

On August 11, the district court dismissed two cases from Utah state and local government entities and other parties challenging President Biden’s restoration of the Grand Staircase–Escalante and Bears Ears National Monument boundaries in Utah:  “President Biden’s judgment in drafting and issuing the proclamations as he sees fit is not an action reviewable by a district court.”  Plaintiffs could not point to anything that waived the president’s sovereign immunity from litigation.  They are appealing this decision.  (The article includes a link to the opinion.)

Court decision in State of Wyoming v. U. S. Environmental Protection Agency (10th Cir.)

On August 15, the circuit court affirmed EPA’s approval of plans to reduce air pollution at two Wyoming coal plants affecting national parks and wilderness areas designated as Class 1 under the Clean Air Act.  It remanded a third that it found to be overly restrictive based on an error in EPA’s evaluation.  Environmental intervenors had argued that the plans were not restrictive enough, as explained in this article (which includes a link to the opinion.)

FISH AND WILDLIFE SERVICE – update next week

 

 

 

 

The “new” Clean Water Act and federal land management

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Source:  EPA

The Supreme Court recently decided to (re)redefine the scope of the Clean Water Act (CWA) as it pertains to wetlands, which is likely to affect federal land management, as mentioned here.  Here is a recent analysis of that specific question.

Some attorneys feel that “By establishing a jurisdictional test that focuses entirely on surface waters, while ignoring the dynamic interaction of streams with shallow groundwater, a significant number of headwaters streams located on public lands will become non-jurisdictional,” and lose some protections, depending on what state they’re in (state Clean Water Act administration applies to federal land management).  Other attorneys (including one we know) said, “Laws like the National Forest Management Act, Federal Land Policy and Management Act, etc. extend protection to aquatic features too, making CWA application duplicative.”  The article mentions NEPA, but its procedural requirements can’t be considered substitutes for CWA’s substantive limits.  (“The Interior Department and the US Forest Service declined to comment.”)

Though federal public land laws and policies do include some requirements for federal agencies to protect water, agencies would have to choose to fill any gap between that level of protection and what the CWA requires.  My 2¢ – removing statutory protection will lead to erosion of other federal and state-imposed measures that may have been seen as supportive of the Clean Water Act, but will now become seen as more discretionary.  And land managers always seem to prefer “flexibility,” which often seems to mean flexibility to provide less protection.

Climate change in the courts – a win for Montana youth plaintiffs

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I mentioned this Montana lawsuit in an earlier litigation update since it was going to be the first case going to trial nationally involving youth plaintiffs demanding action on climate change in a state court.  Since then, we’ve been debating climate science a little here, so here’s an update.  The trial happened and the court ruled in favor of Plaintiffs on one claim (2023.08.14-Held-v.-Montana-victory-order):  a recent change in Montana’s environmental policy act (MEPA), which prohibited consideration of impacts on climate for proposed projects, “violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional.”  The state also failed to show that “the MEPA limitation serves a compelling government interest.”

The Montana state constitution includes this specific right, so the applicability of this outcome elsewhere is uncertain, but Plaintiffs’ attorneys (who are representing youth plaintiffs in other climate cases) are optimistic that it may provide some momentum.

The Washington Post had an interesting take on factual questions related to climate change:

In a pivot from its expected defense disputing the climate science behind the plaintiffs’ case, the state focused instead on arguing that the legislature should weigh in on the contested law, not the judiciary.

Michael Gerrard, the founder of Columbia’s Sabin Center, said the change in strategy came as a surprise: “Everyone expected them to put on a more vigorous defense,” he said. “And they may have concluded that the underlying science of climate change was so strong that they didn’t want to contest it.”

The state’s defense was unsuccessful. Judge Kathy Seeley determined that the state’s emissions could be fairly traced to the legal provision blocking Montana from reviewing the climate impacts of energy projects. She further wrote that the state’s emissions and climate change have caused harm to the environment and the youth plaintiffs.

If the WaPo article isn’t viewable, here’s another with more background on the case.

(It was interesting when I looked for a meme to include with this post – they seem to be dominated by not-very-clever climate change denialism.)

Forest Service Wins- Fremont-Winema National Forest with CE 6

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This is usually Jon’s round-up territory but I thought it was so interesting it deserved a post of its own, plus it’s my old stomping grounds. Thanks to a friend of The Smokey Wire, it came via a Law 360 article.

Law360 (August 7, 2023, 8:27 PM EDT) — An Oregon federal judge has thrown out environmentalists’ lawsuit attempting to block commercial lumbering in a national forest, ruling regulators properly determined the timber thinning projects were exempt from stringent environmental review.
The U.S. Forest Service correctly approved logging almost 30,000 acres in the Fremont-Winema National Forest over three projects aimed at improving wildlife habitat and timber stands, U.S. District Judge Michael J. McShane said in a Friday order granting the service’s motion for summary judgment. In the same ruling, Judge McShane turned down a summary judgment counter from the groups, Oregon Wild and Wildearth Guardians, ruling they hadn’t shown the USFS granted unlawful exclusions from environmental review for logging and waited too long to challenge the exclusion category itself.
The environmental groups sued last year, alleging the forest service used categorical exclusion six to create a loophole that let logging companies bypass impact analysis of the South Warner, Bear Wallow and Baby Bear projects in the national forest. The exclusion may also be invalid since it has now been used to approve big, commercial logging projects without considering their environmental consequences, the groups alleged.
But Judge McShane, in his Friday ruling, said the exclusion’s language permits commercial logging and has no limit on the size of timbering projects. Instead, it bars herbicide use and restricts road building, the judge added. The forest service explained how thinning the forest would improve habitat for birds, turtles and deer, cut back overcrowded conifer trees and reduce the risk of insect infestation, Judge McShane said.
The USFS, therefore “reasonably determined that thinning to improve wildlife habitat and favorable timber stand conditions” fell within the scope of the exclusion, the judge ruled.
Turning to the groups’ challenge to the exclusion itself, Judge McShane said opponents had missed the six-year deadline to get the 1992 rule overthrown. Conservation groups were not entitled to an exception from that deadline, the judge added.
Oregon Wild and WildEarth Guardians argued that the forest service never determined commercial logging had no significant impacts when it approved the thinning exclusion, a violation of the National Environmental Policy Act.
But in order to receive an exemption for the case under the Ninth Circuit’s decision 1991 decision in Wind River Mining Corp. v. United States , opponents had to make a substantive challenge that the forest service lacked legal authority to make the exclusions, Judge McShane said.
“The problem in plaintiff’s argument is that NEPA is a procedural statute,” the judge said. “NEPA directs agencies to create categorical exclusions and requires certain procedures for doing so. It does not dictate specific substantive results.”
The USFS declined to comment Monday. A representative for the environmental groups did nots represented by Natalie K. Wight and Sean E. Martin of the U.S. Attorney’s Office for the District of Oregon. The environmental groups are represented by Oliver J.H. Stiefel, Erin E. Hogan-Freemole and Meriel L. Darzen of Crag Law Center.

So that’s the legal side. I’m finding out more about the projects themselves. Interestingly the South Warner Project seems to be linked to MOG at least in the minds of some.

The South Warner Project includes commercial logging of large, old trees under the guise of “timber stand and wildlife habitat improvement,” said John Persell, Staff Attorney at Oregon Wild.  “It is yet another example of why a national rule protecting mature and old-growth forest stands is needed to address the climate and biodiversity crises.”

As a former NEPA practitioner, I wouldn’t have rolled the dice on Category 6, but if you’re going to roll the dice, you should go big, like 30K acres.

Public Lands Litigation – update through July 28, 2023

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New lawsuit:  Earth Island Institute v. Moore (E.D. Cal.)

On July 13, Earth Island Institute and Sequoia Forestkeeper initiated a lawsuit against the Nelder Grove Fuels Reduction Project in a sequoia grove on the Sierra National Forest, authorized along with other projects in a 2022 decision memo.  It is the result of the 2017 Railroad Fire which burned 80% of the Nelder Grove Historical Area.  The complaint alleges that the project is not consistent with the forest plan requirements to protect the sequoia grove (both the plan it was prepared under and the recently revised plan).  Plaintiffs assert that the ongoing project is killing the giant sequoias that regenerated as a result of the Railroad Fire by logging in that portion of Nelder Grove.

Settlement

On July 17, the federal government signed off on an agreement to settle four lawsuits brought by states and environmental organizations against diverting funds for construction of the Mexico border wall during the Trump Administration.  The government agreed to redirect the funding to military construction projects and to undertake several actions promoting wildlife connectivity and conservation to mitigate damage caused by the wall.  This includes the construction of 24 wildlife passages in remote areas on public lands and opening of nine stormwater gates along the wall, funding to acquire a 1,300-acre chunk of critical wildlife habitat east of San Diego, and additional funding for endangered and threatened wildlife conservation research.  (The article has a link to the settlement agreement; specific locations of wall gaps are redacted.)

New lawsuit:  Center for Biological Diversity v. Federal Emergency Management Agency (D. Or.)

On July 17, the Center and Cascadia Wildlands sued FEMA and the U. S. Fish and Wildlife Service over plans to use federal disaster funding to rebuild a logging road in the Tillamook State Forest (Oregon) due to the harm it would cause protected coho salmon and marbled murrelets.  The complaint alleges violations of NEPA and ESA.  (The article includes a link to the complaint.)

Court decision in American Forest Resource Council v. U.S.A. (D.C. Cir.)

On July 18, the circuit court issued an opinion affirming the expansion of the Cascade-Siskiyou National Monument (which agrees with a previous 9th Circuit opinion).  The legal arguments in these cases hinged on whether the Oregon and California Lands (O&C) Act committed approximately 40,000 acres of the monument expansion to commercial logging, making those BLM lands ineligible for inclusion in a monument.  This court concluded, “The goal of the O&C Act, then, was to ‘provide conservation and scientific management for this vast Federal property…’ and the Monument’s expansion is itself consistent with sustained yield forestry.”  (More background is provided in this press release.)

Court decision in County of Ventura v. U. S. Forest Service (C.D. Cal.), City of Ojai v. U. S. Forest Service (C.D. Cal.), Los Padres Forestwatch (and 6 others) v. U. S. Forest Service (C.D. Cal.)

On July 19, the district court determined that the city of Ojai and Ventura County did not have legal standing to challenge the Reyes Peak Forest Health Project on the Los Padres National Forest, finding that effects on tourism and tax revenue were “speculative.”  The court found that the 755-acre chaparral treatment project was consistent with the forest plan, and complied with the Roadless Area Conservation Rule’s limitations on logging larger trees and with the Endangered Species Act, and that a categorial exclusion was sufficient environmental review.  According to the plaintiffs, the Forest Service received more comments on this proposal than any other project in the history of the Los Padres.

  • BLM wild horses

Settlement of Wild Horse Fire Brigade v. U. S. Bureau of Land Management (D. D.C.)

On July 19, the U.S. Department of Justice settled the lawsuit brought against the BLM involving the roundup of wild horses within and adjacent to the Pokegama Herd Management Area in southern Oregon.  BLM agreed to conduct an excess determination as required by the Free Roaming Wild Horse and Burro Act, and to follow NEPA procedures before continuing a roundup.  The article includes a link to the original complaint (and tells us more about their arguments).

(In yet another plot twist for the fire/fuels management debate: “the herd of wild horses owned and managed by local rancher/researchers (William Simpson & Michelle Gough) in conjunction with Wild Horse Fire Brigade, were instrumental in aiding CALFIRE during the deadly 2018 Klamathon Fire via wildfire fuels reductions prior to the onset of the wildfire, by creating and maintaining areas of reduced grass and brush fuels.”)

New lawsuit

In eastern Nevada, activists have sued the BLM after 21 horses died during a roundup in the Antelope Complex.

Notice of intent to sue

On July 19, the Center for Biological Diversity and Maricopa Audubon Society notified the U.S. Fish and Wildlife Service that the agency is in violation of the Endangered Species Act due to its unreasonable delay in proceeding with a proposed rule to revise the existing critical habitat designation for the endangered Mount Graham red squirrel.  Past logging of its habitat on the Coronado National Forest contributed to its listing, and Forest Service actions in its habitat have been challenged.  

Withdrawal of project litigated in Center for Biological Diversity v. Haaland (D. Nev.)

On July 20, two weeks after the lawsuit was filed, the BLM halted a proposed lithium mining operation near Ash Meadows National Wildlife Refuge over concerns that the drilling could impact the groundwater, the river it feeds and endangered and threatened species that depend on it.  Rover Metals will be required to submit a plan of operations with more information to BLM so the bureau can determine if it’s possible to mine without damaging the refuge or surrounding area.

Court decision in Rocky Mountain Wild, Inc. v. U. S. Bureau of Land Management (D. Colo.)

Plaintiffs alleged that, with regard to their 2019 FOIA request, “ongoing FOIA violations by Defendants have prejudiced RMW’s ability to fully participate in ongoing federal land management decisions, including the National Environmental Policy Act (“NEPA”) processes for the Tres Rios Resource Management Plan (“RMP”) Area of Critical Environmental Concern (“ACEC”) Amendment Process” specifically with regard to the Gunnison sage-grouse, and “under the heightened standard of the FOIA Improvement Act of 2016.”  In an earlier decision, the court required a more specific “Vaughn Index” documenting the nature and harm of documents withheld and redacted under the deliberative process exemption (Exemption 5), and required a more diligent search for records.  Unlike the Corps of Engineers case discussed here, this magistrate judge found on July 20 that, by adding additional context for the records, “The agency thus linked the harm to the specific information in the withheld documents.”  The use of “universal search terms” produced 803 more documents, and the court found it to be a “good faith effort.”  (However, the explanation for one of those documents did not measure up to those in the revised Vaughn Index and the court required its release.)

Court hearing in Oregon Wild v. U. S. Forest Service (D. Or.)

On July 21, the district court heard oral arguments in a lawsuit against three projects on the Fremont-Winema National Forest:  the South Warner, Bear Wallow and Baby Bear projects.  Plaintiffs object to the agency’s use of a categorical exclusion for timber stand and wildlife habitat improvement activities that would cover 29,000 acres, and assert that if CE-6 applied to this scale of effects, it would be invalid.  The article includes a link to the July 2022 complaint.

Settlement in Center for Biological Diversity v. Haaland (D. D.C.)

On July 24, the U. S. Fish and Wildlife Service agreed to dates by which it would complete 12-month findings regarding whether 33 species should be listed as threatened or endangered, most by the end of this year.  Two of the species are found in the southwestern U. S. and the rest in the southeast, and they include eight crayfish, six freshwater mussels, five cave beetles, four crustaceans, three fish, three salamanders, two plants, and two mammals.  The mammals are the eastern spotted skunk and the Texas kangaroo rat.  The press release includes a link to the settlement agreement.  (Presumably some of these are found on federal lands.)  This case is an offshoot of a 2019 notice of intent to sue over listing and critical habitat delays for 274 species.

Notice of intent to sue

On July 25, on behalf of Defenders of Wildlife, the Center for Biological Diversity, The Wilderness Society, MountainTrue, and the Sierra Club, the Southern Environmental Law Center notified the Forest Service and Fish and Wildlife Service of their intent to sue over the effects of the recently revised forest plan for the Nantahala-Pisgah National Forest on four threatened or endangered bat species and flaws in the required consultation process.  We discussed this here.  The news release includes a link to the notice.

Supreme Court decision in The Wilderness Society v. U. S. Forest Service

On July 27, the Supreme Court vacated the 4th Circuit’s decision to grant the Wilderness Society’s motions to stay construction on the Mountain Valley Pipeline pending that court’s possible review of the Forest Service’s amended forest plan for the Jefferson National Forest, and BLM’s approval of the pipeline permit.  The article includes links to the results from both courts (which provide no rationales).  This is only a decision about the stay, and the D.C. Circuit could still rule on the constitutional questions related to the Fiscal Responsibility Act legislation which purportedly authorized the pipeline to proceed.

New lawsuit:  Center for Biological Diversity v. Moore (D. Ariz.)

On July 28, the Center and Maricopa Audubon sued the Forest Service over its grazing practices on the Coronado National Forest, and the approval by the U. S. Fish and Wildlife Service of various grazing allotments.  Plaintiffs claim that failure to fence livestock out of riparian areas is harming the threatened Yellow-billed cuckoo and Sonora chub.  The news release includes a link to the complaint.

New lawsuit:  Albany County Conservancy v. Novotny (D. Wyo.)

On July 28, the Conservancy and a former Fish and Wildlife Service eagle biologist filed a lawsuit against BLM’s approval of a transmission line to connect the Rock Creek Wind project to two larger transmission lines that will export wind energy out of the state.  The lawsuit alleges that the approval was done without any public notification, comment or other forms of public participation required by NEPA, and that the EA is legally flawed, particularly the cumulative effects analysis of wind energy development on wildlife.  The article includes a link to the complaint and to a “Renewable Rejection Database,” which records 574 renewable energy proposals being blocked nationally since 2014.

In another article, the same author describes how, “The Bureau of Land Management is withholding oil and gas drilling permits on leased acres on public land, if the leased acres are in litigation.”

Notice of intent to sue

Columbia Riverkeeper, Idaho Rivers United, Idaho Conservation League and the Northwest Sportfishing Industry Association formally notified the Army Corps of Engineers on Friday that it intends to file a lawsuit against operation of four Snake River dams because they are primarily responsible for high water temperatures the effects on migrating salmon.  The potential plaintiffs argue that congressional authorizations for federal dams do not create exemptions to the Endangered Species Act and cannot prevent the dams from being prohibited and removed.

Recent Endangered Species Act policy news – June/July 2023

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A Louisiana pine snake, a threatened species under the Endangered Species Act, in the Kisatchie National Forest, La. Gerald Herbert/AP Photo

REGULATIONS

On June 22, the Fish and Wildlife Service and National Marine Fisheries Service proposed (for public comment by August 23) a new set of regulations for administering the Endangered Species Act, which for the most part cancelled many of the changes adopted by the Trump Administration.  This follows litigation that resulted in the Trump rules being kept in place pending this action by the Biden Administration.  The changes are in three rules governing these main topics:

  • Interagency consultations under ESA section 7, including clarifying the distinction between the environmental baseline and effects of the action
  • Procedures and criteria for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4, including loosening criteria for designating unoccupied habitat, validating the role of long-term effects such as climate change, and removing economic considerations from this scientific process
  • Reinstatement of USFWS’s blanket ESA section 4(d) rule which, prior to its repeal in 2019, extended the take prohibitions of ESA section 9 to all species. listed as threatened under the statute unless USFWS issued a species-specific rule

While those who liked the Trump version would be expected to criticize all of this, the conservation organizations are not entirely happy that some of the Trump changes have been retained.  A couple of key ones noted by the Sierra Club include:

“One such regulation severely undercuts critical habitat protections. The policy says a development project must affect critical habitat “as a whole” before alternative projects are considered. This would protect a species with a small range because a major infrastructure project would likely destroy its entire area, and thus it would be hard to approve such development. Not so for species with large ranges, like northern spotted owls and gray wolves. There would never be an instance where habitat was destroyed as a whole for a species whose range includes hundreds, thousands, or even millions of acres.”

“Another missed opportunity, conservationists say, was the chance to update the definition of “environmental baseline,” a term used to describe the habitat of a listed species before federal agencies begin a project. Agencies are supposed to evaluate whether their activities jeopardize a species’ survival and recovery. The Biden administration decided to keep the 2019 rule that allows officials to overlook the cumulative effects of past decisions for ongoing projects. Dams in the Pacific Northwest, for example, have pushed salmon and trout runs to the brink of extinction. When a federal agency is looking to extend a dam’s operating license or approve a new dam operating plan, its consultation with the wildlife agency shouldn’t ignore those past effects on the species’ biological condition.” (For land management agencies, this might apply to something like roads.)

On July 3, the Fish and Wildlife Service adopted a final section 10(j) rule that would allow it to establish experimental populations of endangered species in places outside of their normal historical range.  This is primarily in response to changes in species’ habitat resulting from climate change:

“Through this rule change we are adjusting our regulatory authority to allow us to adequately respond to these potential scenarios in circumstances where it may not be possible to recover a species within its historical range because of loss or alteration of some or all its suitable habitat,”

LITIGATION

Court decision in Maine Lobstermen’s Association v. National Marine Fishery Service (D.C. Cir.)

On June 16, the circuit court reversed a district court decision and invalidated a regulation issued by the National Marine Fisheries Service to protect Atlantic right whales from lobster and crab fishing activities.  The case is viewed as significant because it discusses and dismisses the use of the “precautionary principle” where there is scientific uncertainty under the Endangered Species Act.

NMFS consulted with itself on the regulation to determine if jeopardy would be likely.  In its Biological Opinion, NMFS concluded that federal fisheries entangle more than 9% of right whales each year.  According to the court, to reach this estimate, the Service put aside the data on confirmed entanglements and relied instead upon a “scarring analysis” from a 2019 study, noting “This approach provides the benefit of the doubt to the species and a more conservative estimate of total right whale entanglements.” NMFS stated that “uncertainty is resolved in favor of the species” and that it generally “select[s] the value that would lead to conclusions of higher, rather than lower, risk to the endangered species.” To defend its use of the worst-case assumptions, the agency pointed to a line in a House Conference Report for the 1979 amendments to Section 7 of the ESA, which stated that “this language continues to give the benefit of the doubt to the species.”  In its consulting role, NMFS concluded that the regulation would not jeopardize the species.  In adopting the regulation, NMFS acknowledged that its “model outputs very likely overestimate the likelihood of a declining population.”

The court declined to give deference to the agency, and held the BiOp was arbitrary because in the administrative record NMFS had erroneously claimed that its position was required by the ESA’s legislative history, and because its current “policy” on resolving uncertainty using the precautionary principle conflicted with its prior (opposite, under the Trump Administration) position.  In addition, the court stated:

“Statutory text and structure do not authorize the Service to “generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species” whenever it faces a plausible range of values or competing analytical approaches. The statute is focused upon “likely” outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic…

If brute uncertainty does make it impossible for the Service to make a reasoned prediction, however, the interpretive rules supply a ready answer: The Service lacks a clear and substantial basis for predicting an effect is reasonably certain to occur, and so, the effect must be disregarded in evaluating the agency action.”

However, the court left the regulation in place, concluding that NMFS might be able to justify it on remand.  (Perhaps meaning, “if they say it in a different way.”  It may also be possible for the consulting agencies to interpret a study that uses the precautionary principle as the best available science for predicting likely outcomes.)  Here is another summary of the case.

“Greenwire,” in its “occasional series” discusses the role of litigation in implementing the Endangered Species Act.  Some highlights:

During President Ronald Reagan’s first three years, 22 species were listed as threatened or endangered. By contrast, 100 species got protections in the Carter administration’s first three years.  In response, a frustrated Congress in 1982 amended the law to add deadline teeth.

A 2017 Government Accountability Office study found that plaintiffs filed 141 such ESA missed-deadline suits between fiscal 2005 and 2015.

“The Fish and Wildlife Service knows the workload, and it refuses to ask for enough money to get the work done,” Suckling (Center for Biological Diversity) said, “and then when it doesn’t get the work done, it goes to the judge and says, ‘Your Honor, I don’t have enough money.’”

“Of our total revenue in a given year, only about 5 percent comes from legal returns,” Suckling said. “It’s really just not that much money, [and] settlements are good for everybody.”

“We could avoid having to fully litigate cases and use scarce resources to do so if the agency would agree to settle cases more,” said Larris of WildEarth Guardians, “but they much more often decline to settle.”

In what’s still one of the most comprehensive studies of its kind, Biber and co-author Berry Brosi, a biologist now at the University of Washington, assessed the role played by petitions and litigation with hundreds of species. They concluded, in a 2010 issue of the UCLA Law Review, that species listed as a result of a petition or litigation faced greater threats than species listed on the agency’s initiative.  Biber said he believes the 2010 conclusions remain valid, saying that overall, petitions and litigation “are beneficial [in] ensuring that the species most at threat are protected.”

Former FWS Director Dan Ashe, who oversaw the agency during the Obama administration and now is the president and CEO of the Association of Zoos and Aquariums, assessed that “litigation overall has been beneficial” in sustaining a focus on protecting species.

 

Recent developments in mining and energy litigation and policy – July 2023

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I only recently started specifically looking for BLM cases, so I may be catching up late on some of them.  Most seem to involve mining and energy.  (This summary includes one Forest Service case.)

New lawsuit:  Center for Biological Diversity v. Haaland (D. Nev.)

On July 7, CBD and Amargosa Conservancy challenged the BLM’s authorization of the Let’s Go Lithium mineral exploration project on federal lands in BLM’s Pahrump Planning Area, in the vicinity of springs in the Ash Meadows National Wildlife Refuge, and two BLM Areas of Critical Environmental Concern.  Lithium mining requires a lot of water.  The project would involve up to 30 exploratory drillholes.  The proposal allegedly violates FLPMA, NEPA and indirectly ESA (with regard to consultation on 12 species).  On July 17 plaintiffs filed a motion for a temporary injunction.  The article includes a link to the complaint.  Also, according to this article, “under federal law, most exploratory projects on public land are not required to submit a plan of operation, complete an environmental analysis, or solicit public comment.” A representative of the Conservancy was quoted:

“We are collectively witnessing what is inarguably the greatest transformation of public lands in our nation’s history, and western Nevada’s Amargosa Desert is at the epicenter of this change.  Renewable energy development and lithium extraction are the twin priorities driving this transformation forward at an unprecedented scale and pace.”

His reference to renewable energy was probably to the Interior Department’s recent sale of leases for solar development on 23,675 acres in or near the Amargosa Valley Solar Energy Zone, a designated solar leasing area with high solar potential and what the Bureau of Land Management in a 2012 analysis characterized as an area of low resource conflict.  The BLM identified the Amargosa valley as one of 17 nationwide solar energy zones wherein solar energy projects are encouraged.  (The BLM is currently processing 74 utility-scale solar, wind and geothermal projects on public lands in the western United States.  An additional 150 solar and wind development applications are undergoing preliminary reviews.)

“Utility-scale solar does not have a huge annual consumption of water during operation, but construction activities can use thousands of acre-feet of water for a single facility. If BLM is going to develop tens of thousands of acres of solar in this area, it could potentially take tens of thousands of acre feet of water,” said Patrick Donnelly, the Great Basin director of the Center for Biological Diversity.  He contrasted the lack of a plan for this area with the BLM California’s Desert Renewable Energy and Conservation Plan.

This article also summarizes a number of lawsuits over renewable energy proposals.

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

On July 17, the 9th Circuit affirmed a district court holding that the Bureau of Land Management had not violated the National Environmental Policy Act and other federal laws when it approved the Thacker Pass lithium mine.  This did not address the district court’s order that the BLM complete additional analysis of how the mine will handle waste and tailings in accordance with the 1872 mining law, and it means the mine development can continue while that analysis occurs.  The court also ruled the BLM acted “reasonably and in good faith” in its consultation with tribes.  “This is the first time in public land history that we have a major project violating a number of provisions but is allowed to go forward,” Roger Flynn, the director of the Colorado-based Western Mining Action Project, told the 9th Circuit panel during oral arguments in Pasadena on June 27.  (The article includes a link to the opinion, and here is further background.)

Here is an interesting perspective from “The Voice of the Automotive World.”

In other news, the mining company has sued protesters for what they deemed “nonviolent prayer” protests at the mine site. Lithium Americas was forced to call the Humboldt County Sheriff’s Office when protesters got “dangerously close” to construction equipment.

Notice of intent to sue under ESA

On June 20, eight environmental groups challenged the Coronado National Forest’s approval of the Sunnyside and Flux Canyon exploratory mineral drilling projects in the Patagonia Mountains for copper, lead, zinc and silver (discussed here).  On July 13, they gave the Forest Service and Fish and Wildlife Service a 60-day notice of intent to sue for Endangered Species Act violations affecting Mexican spotted owls, yellow-billed cuckoos, jaguars, and ocelots.  On July 14 they asked for a preliminary injunction on their existing claims.  We also discussed another mine in the same area that was being fast-tracked for its rare metals by the Biden Administration.  From this article, it does not sound like there will be litigation on the Hermosa Project.

Update

In September 2020, a coalition of conservation groups including Friends of the Floridas, New Mexico Wild, WildEarth Guardians, Gila Resources Information Project, and Amigos Bravos sued BLM to reverse the agency’s simultaneous approvals of construction and operation of a dolomite mine, and the exploration activity required to prove the value of the mineral claim in the Florida Mountains in southwest New Mexico.  On July 12, 2023, the Federal District Court for the District of New Mexico heard oral arguments involving violations of NEPA and FLPMA.

Update

As discussed here, the lawsuit against the BLM’s decision to allow Ormat Technologies to develop geothermal resources in Dixie Meadows east of Reno in habitat for the recently listed Dixie Valley toad has been on hold at the request of the developer.  BLM has now decided, “As a result of its ESA consultation efforts and new information it has determined that it would be prudent to revisit the environmental review underlying the project.  BLM does not intend to authorize any such new construction until the conclusion of the environmental review.”  Ormat supports the delay.

 

Public Lands Litigation – update through July 14, 2023

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I left some recent mining cases out of this one – to follow in a separate post.

Court decision in Friends of the River v. U. S. Army Corps of Engineers (D. D.C.)

On June 21, the district court required the Corps to release documents about dam operations that it had tried to withhold using the deliberative process exemption (Exemption 5).  That exemption requires that a record be pre-decisional and deliberative, and also that its release would cause foreseeable harm.  The Corps provided mostly “generalized explanations” for not providing the records, and did not articulate “[a] link between the specified harm and the specific information contained in the material withheld,” as required by the Freedom of Information Act (such as emails, in particular).  FOIA applies government-wide and this type of response from agencies is not unusual (says a former Forest Service regional FOIA coordinator).

  • ESA delays

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Ariz.)

On June 22, the Center for Biological Diversity sued the U. S. Fish and Wildlife Service for failure to meet statutory ESA deadlines related to listing 13 species.  The claims include failure to issue final rules to list the cactus ferruginous pygmy owl, Peñasco least chipmunk, Mt. Rainier white-tailed ptarmigan, 4 unlisted distinct population segments (“DPS”) of the foothill yellow-legged frog, 6 Texas freshwater mussels and the wider ranging pyramid pigtoe mussel; failure to issue an initial timely 12-month finding for the tall western penstemon; and failure to finalize critical habitat protection for the Pacific marten coastal DPS.  The article on mussels provides access to the complaint.

Court decision in Chapman v. U. S. Forest Service (E.D. Cal.)

On June 23, the district court “screened” a case from a plaintiff not represented by an attorney (“pro se”) challenging special use roadway permits for a commercial recreational development on private land, adjacent to the Stanislaus national forest and adjacent to plaintiff’s property.  The court held,

Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18 and 20 and fails to state a cognizable claim upon which relief may be granted. As Plaintiff is proceeding pro se, the Court will grant Plaintiff an opportunity to amend his complaint to cure these deficiencies to the extent he is able to do so in good faith

Court decision in Alliance for the Wild Rockies v. Gassman (D. Mont.)

On June 26, the district court held that the Kootenai National Forest failed to adequately analyze the effects of the Ripley vegetation management project on grizzly bears and Canada lynx, especially the cumulative effects of roads on grizzly bears, both public and private.  The record provided no evidence that lynx were not present in the area.  The court also stated, “The court and the public should not have to embark on a scavenger hunt through a nearly 30,000 page administrative record to find information that the biological opinion itself was supposed to disclose.”  More in this article.

  • Red Rocks Lake Wilderness water diversion

New lawsuit

On June 26, Wilderness Watch, Alliance for the Wild Rockies, Gallatin Wildlife Association, and Yellowstone to Uintas Connection filed a lawsuit against the U.S. Fish and Wildlife Service, challenging its plan to construct and operate a water-diversion pipeline to help arctic grayling within the Red Rock Lakes Wilderness Area in a national wildlife refuge in southwestern Montana.  They allege violations of the wilderness act, especially in light of other measures that could be taken to help the species, and question the science.  Fishery groups have supported the proposal.  (Interesting how the two articles had different takes and quotes on the issue.)

Dismissal and attorney fees for Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Ind.)

On June 27, after the court granted a preliminary injunction against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest (discussed here), the Forest Service agreed to dismiss the case and pay attorney fees of $70,000.

Court decision in Blue Mountains Biodiversity Project v. Jeffries (9th Cir.)

On July 3, the circuit court affirmed the district court decision and upheld the Ochoco National Forest’s approval of the Walton Lake Restoration Project against claims of NEPA violations.  (The opinion includes a short summary.)  Also, in relation to deliberative documents, such as those subject to the FOIA ruling above, the court held that they need not be included in the administrative record in litigation.

Court decision in Donohoe v. U. S. Forest Service (9th Cir.)

On July 6, the circuit court dismissed NEPA claims as moot for the “Bridge Project” and the “Trail Project” on the Custer-Gallatin National Forest because they had been completed, and ESA claims were dismissed additionally because of failure to give the agency a notice of intent to sue.

  • Mountain Valley Pipeline

Continuing saga

On July 10, the 4th Circuit Court of Appeals halted construction of the last section of the 303-mile Mountain Valley pipeline to run through the Jefferson National Forest while it considered a petition for review by parties who have been opposing the project from its outset.  On July 14, attorneys for the pipeline asked the Supreme Court to vacate the stays ordered by the circuit court based on language in the federal debt ceiling legislation.  Opponents of the pipeline argue that Congress acted outside its constitutional authority because the Mountain Valley debt deal provision (discussed here) effectively determined the outcome of cases still before the courts, a separation of powers issue.

Policy update

In the “not yet news” category, “The BLM is reviewing the court’s decision and has not issued any new guidance regarding corner crossing,” says the agency referring to the issue of walking between isolated sections of public land.  On the other hand, its director says, “Our solicitors think it’s pretty clear.”  The view from the outside?  “Until we get a declaration from the 10th Circuit yay or nay, we’re still going to do a little bit of head scratching.”