Litigation

FOREST SERVICE

• Coronado NF mines

Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (D. Ariz.)

On September 1, the district court denied a preliminary injunction against the Sunnyside and Flux Canyon exploratory drilling projects in the Patagonia Mountains on the Coronado National Forest.  The Sunnyside Project is a seven-year exploratory drilling project, requiring the construction of thirty drill pads within three drill areas occupying 7.5 acres.  The Flux Canyon Project is a twelve-month exploratory drilling project, requiring the construction of about 2,000 feet of road and six drill pads disturbing 1.8 acres of national forest land.  The court found plaintiffs would be unlikely to prove inadequate analysis of cumulative effects, effects on Mexican spotted owls and other species and water conditions in the EA for the Sunnyside Project or that Flux Canyon Project did not warrant a CE.

• Tongass NF roadless rule

New lawsuits:  Alaska v. U. S. Dept. of Agriculture (D. Alaska)

Inside Passage Electric Cooperative v. U. S. Dept. of Agriculture (D. Alaska)

Murkowski v. Vilsack (D. Alaska)

On September 8, the State of Alaska and two other groups of plaintiffs filed three separate federal lawsuits challenging the Forest’s Service’s repeal of the 2020 Alaska Roadless Rule and reinstatement of the national 2001 Roadless Area Conservation Rule on the Tongass National Forest, which restricts road construction.  The lawsuit focuses on “prospective geothermal and hydroelectric power plants, as well as hypothetical metal mines whose products could be used for green technologies.”  An attorney for a plaintiff said that logging companies aren’t part of these new lawsuits because logging is restricted under a new forest plan, and the prospects of changing the forest plan are limited (evidently referring to the 2016 “young growth” plan amendment).  (The article includes a link to all three complaints.)

• Nevada desert tortoise

New lawsuit:  Western Watersheds Project v. Haaland (D. D.C.)

On September 14, plaintiffs sued Clark County, NV and the Fish and Wildlife Service along with the Forest Service, BLM, and Park Service (and USDA and USDI) for failing to protect the Mojave desert tortoise and other rare species subject to the Clark County Multi-Species Habitat Conservation Plan (“MSHCP”). The Forest Service, BLM, NPS, and Fish and Wildlife Service all signed an Implementing Agreement, which binds them to implement the MSHCP.  The MSHCP was created to offset the development of nearly 170,000 acres of land on the outskirts of Las Vegas that would destroy habitat for imperiled desert species, in exchange for mandatory conservation measures, which have allegedly not been implemented.  Trespass grazing (by Cliven Bundy) and solar energy permits are among the activities being allowed to occur.  Plaintiffs seek reinitiation of ESA consultation on the effects of the incidental take allowed by the MSHCP, and supplemental NEPA analysis.

• Custer Gallatin NF South Plateau Project

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

On September 20, the Center for Biological Diversity, the Council on Wildlife and Fish, and the Alliance for the Wild Rockies sued to stop the South Plateau Landscape Area Treatment Project just west of Yellowstone National Park on the Custer Gallatin National Forest.  Plaintiffs say the 83 million board-feet of commercial timber expected to be removed is “significantly more than allowed under the Custer Gallatin National Forest Plan.”  The Project would log mature forests using a condition-based approach to NEPA compliance that does not identify specific locations.  However, it plans timber harvest or burning on 16,462 acres, including 5,531 acres of clear-cutting, 6,593 acres of other commercial harvest and 56 miles of roads in habitat designated for grizzly bears and Canada lynx.  The article includes a link to the complaint.  On September 6, the lawsuit parties also filed a notice of intent to sue under the Endangered Species Act (linked to this article).

• El Dorado Fire damages

New lawsuit

The Forest Service is suing three businesses alleging that smoke bombs — deemed illegal in California and used during an ill-fated gender reveal event — were defective, and sparked the deadly 2020 El Dorado fire in San Bernardino County.  The suit, which alleges negligence and health and safety violations, seeks unspecified monetary damages for fire suppression and investigative costs and various adverse environmental impacts.

• Bridger-Teton NF Roosevelt Fire damages

New lawsuit

Thirty-two Wyoming residents and organizations are suing the Forest Service for allegedly choosing to not suppress the 2018 Roosevelt Fire on the Bridger-Teton National Forest during “red-flag” fire conditions.  The fire consumed more than 65,000 acres and burned 55 homes.  Using an unplanned fire to achieve natural resource benefits isn’t authorized by federal law and violates the National Environmental Policy Act, the complaint says. The document also accuses the agency of failing to consult with the U.S. Fish and Wildlife Service under the Endangered Species Act and failing to harmonize the act with the Forest Plan.

BLM

• BLM grazing NEPA

New lawsuit:  Western Watersheds Project v. U. S. Dept. of Interior (D. D.C.)

On September 14, Western Watersheds and Public Employees for Environmental Responsibility filed a lawsuit accusing the Bureau of Land Management of failing to perform required grazing permit reviews across the West.  PEER analyzed data from 1997 to 2019 on land health evaluations for BLM’s 21,000 grazing allotments, and found the 27% had not been evaluated for environmental impacts pursuant to NEPA, with an even greater proportion in important natural areas and wildlife habitat, including for sage-grouse.  The plaintiffs argue that this violates 2014 and 2015 FLPMA amendment requirements to determine priority for environmental analysis and to conduct such analyses.  The article includes a link to the complaint.

• BLM Oregon Big Weekly Elk Project

New lawsuit:  Cascadia Wildlands v. U. S. Bureau of Land Management (D. Or.)

On September 19, Cascadia Wildlands and Oregon Wild went to court to stop the Big Weekly Elk Forest Management Project on the Coos Bay District.  The Project decision is based on an EA, and includes logging uncommon mature and old-growth forests and habitat for marbled murrelets and northern spotted owls.  The news release has a link to the complaint.

PARK SERVICE

• Yosemite National Park thinning

Court decision in Earth Island Institute v. Muldoon (9^th Cir.)

On September 12, the circuit court affirmed the district court’s denial of Earth Island Institute’s motion for a preliminary injunction to halt parts of two projects to thin vegetation in Yosemite National Park in preparation for controlled burns.  The court held that the projects fell under the “minor change” categorical exclusion because they were “changes or amendments” to the 2004 Fire Management Plan that would cause “no or only minimal environmental impact.”

• Sequoia/Kings Canyon National Parks fuels projects

New lawsuit:  Wilderness Watch v. National Park Service (E.D. Cal.)

On September 25, Wilderness Watch, Sequoia Forestkeeper and the Tule River Conservancy filed a complaint seeking to enjoin “Fuels Reduction Efforts to Protect Sequoia Groves in Sequoia and Kings Canyon National Parks from the Devastating Effects of High-Intensity Fire,” authorized by a decision memo and using emergency NEPA procedures.  Much of the tree cutting and burning would occur in designated wilderness, with Park Service arguing that is “necessary” to violate the Wilderness Act.  The article includes a link to the complaint.

EPA

• Pesticides and ESA

Settlement in Center for Biological Diversity v. Environmental Protection Agency (N.D. Cal.)

On September 12, the court approved a settlement agreement that commits the Environmental Protection Agency to develop a strategy to address the effects of over 300 active ingredients in herbicides, insecticides and rodenticides on ESA-listed species by 2025.  A biological evaluation to address the harms of eight especially hazardous organophosphate insecticides on endangered species is required by 2027.  The news release includes a link to the settlement and 2011 complaint.

FISH AND WILDLIFE SERVICE

• Foothill yellow-legged frog listing 

On August 31, the Fish and Wildlife Service listed four distinct population segments (DPSs, see map) of foothill yellow-legged frog under the Endangered Species Act.  In the final rule, the Service identified altered hydrology, agriculture, illegal cannabis cultivation, predation by nonnative species, diseases and parasites, mining, urbanization, recreation, severe wildfire, drought, extreme flooding, and the effects of climate change as severe threats to the Frog  The species is found on national forests, and was part of a recent lawsuit mentioned here.

• Grizzly bear litigation

Noah Greenwald, director of the Endangered Species program at the Center for Biological Diversity:

Grizzlies wouldn’t be roaming the greater Yellowstone ecosystem if it wasn’t for plentiful food, and the vast wildlands of the national park that offer protections from traps, bullets, chainsaws and bulldozers. But one of the most important places for grizzlies in recent decades has been the federal courthouse. I recently reviewed every lawsuit filed on behalf of grizzlies bears during the past 30 years and it’s clear that litigation has played a pivotal role in protecting these bruins under the Endangered Species Act, ensuring they survive and thrive.

When it passed the Endangered Species Act 50 years ago, Congress recognized that implementing the law would be difficult for agencies like the Forest Service and Fish and Wildlife Service because of the likelihood of direct conflicts with powerful special interests. As an antidote, a provision was included in the law that allows private citizens to go to court on behalf of species like bears that can’t speak for themselves.

Dozens of lawsuits have been filed during the last few decades to stop logging, mining, road building, livestock grazing and other destructive projects in grizzly bear habitat. Recently the Center for Biological Diversity, where I work, stopped two massive timber sales in the Kootenai National Forest in northwestern Montana that threatened the endangered Cabinet-Yaak population of bears.  The U.S. Forest Service wanted to clearcut hundreds of acres of old forest and construct miles of new roads, which would have had devastating consequences for the grizzly bears.”

And here’s the latest effort to protect grizzly bears in a federal courthouse.   The lawsuit alleges the Idaho Department of Fish and Game killed a grizzly bear cub without authorization from the U.S. Fish and Wildlife Service, which also is named as a defendant for allegedly permitting two other bears to be killed contrary to federal regulations.

NATIONAL FOREST CASES

• Uinta Basin Railway

Court decision in Eagle County v. Surface Transportation Board (D.C. Cir.)

On August 18, the circuit court reversed a decision by the Board to allow construction of the Uinta Basin Railway connecting oil fields in Utah to a railroad along the Colorado River by 88 miles of track through the Ashley National Forest. The Forest Service had granted a permit for the railroad (but was not a party to this lawsuit).  According to the court, the environmental impact statement, which largely limited its analysis to the effects of the new construction, failed to adequately study the potential of oil spills, trail derailments along the Colorado River and the potential for wildfire in communities along tracks. It also did not address the health of the Texas and Louisiana residents who would bear the brunt of increased air pollution near oil refineries.  (This article has a link to the opinion.)

• Custer-Gallatin NF Greater Red Lodge Area Vegetation and Habitat Management Project

Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (D. Mont.)

On August 23, the district court vacated the “Gorilla” (GRLA) Project on the Custer-Gallatin National Forest, which had authorized logging and thinning activities on approximately 21,871 acres, because it reduced the designation of lynx habitat without formal review.  The forest plan includes direction applicable to “mapped lynx habitat” on this national forest.  The Project NEPA analysis “could not rely on Canfield (2016)’s (modified) lynx habitat map without first reviewing Canfield (2016) under NEPA—either separately or as part of the Project EIS.”  It referred to this as improper “tiering,” and held that the Forest violated NEPA by failing to take a hard look at the environmental effects of its revisions to the lynx habitat map.  (I see the problem as one of amending the forest plan without a formal process, which would also be a violation of NFMA.)  The court upheld the Forest on its determination of the wildland-urban interface to comply with exemptions from lynx management direction, and consideration of cumulative effects of a nearby timber sale on state lands.  (The article includes a link to the opinion.)

• Inyo NF gold mine

Court decision in Friends of the Inyo v. U. S. Forest Service (9^th Cir.)

On August 25, the circuit court reversed the decision of a lower court that would have allowed exploratory drilling in bi-state sage-grouse habitat on the Inyo National Forest.  While a full opinion has not been released, the court apparently ruled against the use of categorical exclusions.

• Eastside Screens forest plan amendments

Magistrate findings in Greater Hells Canyon Council v. Wilkes (D. Or.)

On September 1, the district court reversed a plan amendment for national forests in eastern Oregon and Washington that would have allowed logging of trees greater than 21″ in diameter.  (The link is to our extended discussion here.)

• Lead bullets on the Kaibab NF

Court decision in Center for Biological Diversity v. U. S. Forest Service (9^th Cir.)

On September 1, the circuit court refused to require the Forest Service to prohibit the use of lead shot by hunters in the Kaibab National Forest to protect endangered California condors.  It specifically rejected the contention that the Forest Service inaction is violating the Resource Conservation and Recovery Act, a law that lets private organizations and individuals sue anyone who contributes to improper disposal of hazardous waste.  The ruling said that even though the Forest Service has “broad authority to regulate hunting and fishing activities,” it rarely chooses to preempt state laws (see this post for background on this issue).  This article includes a link to the opinion.

• Bobcat Fire damages to the Angeles NF

New lawsuit:  U.S.A. v. Southern California Edison Company (C.D. Cal.)

On September 1, the federal government sued Southern California Edison for damages it sustained from the 2020 Bobcat Fire that burned over 100,000 acres of the Angeles National Forest.  The Forest Service says it spent more than $56 million suppressing the fire, incurred property and natural resource damages of over $65 million, and spent $769,000 on burned area emergency response costs.  Forest Service investigators determined the Bobcat Fire started when a tree came in contact with power lines.  The article includes a link to the complaint.  (Query:  did the Forest Service count any of these burned acres as accomplishments?)

• Custer-Gallatin NF South Plateau Project

Notice of intent to sue

On September 6, the Center for Biological Diversity, Alliance for the Wild Rockies and Council on Wildlife and Fish notified the Custer-Gallatin National Forest and U. S. Fish and Wildlife Service of their intent to sue regarding the South Plateau Project’s effects on grizzly bears and Canada lynx.  The notice also criticizes the use of condition-based process to identify treatments and the logging of mature trees, and it suggests that the project does not comply with the just-revised forest plan.  (This article includes a map showing the results of the mature and old growth inventory for this part of Montana, and the mapping tool is available here.)  The NOI is available here.

• Twin Metals mine on the Superior NF

Court decision in Twin Metals Minnesota LLC v. U. S. A. (D. D.C.)

On September 6, the district court dismissed an attempt by the mining company to reinstate the company’s mineral leases for its planned copper-nickel mine near the Boundary Waters Canoe Area Wilderness in the Superior National Forest, which had been cancelled by the Bureau of Land Management.  The land had then been withdrawn from mineral entry by the Department of the Interior.  The court essentially found that the mining company had no legal rights to its lease.  (The Forest Service was not a party to this case.)

• Kootenai NF grizzly bear forest plan amendment

Litigation follow-up

After losing two recent timber sale lawsuits (Ripley and Black Ram) involving the effects of roads on grizzly bears, the Kootenai National Forest is proposing to amend its forest plan to change the way roads are counted in areas outside of grizzly bear recovery zones (BORZ) to allow the use of temporary roads during logging projects to not count against road limits.  After admitting that, “there’s no (timber sale) project that comes across my desk that gets denied,” the forest supervisor observed, “Getting a handle on the courts would help a lot.”

• Mexican border wall on the Coronado NF

Settlement regarding restoration of national forest lands

While the state had previously agreed to remove the shipping containers it had placed as barriers along the Mexican border, and had done some restoration work, they have now also agreed to pay an additional $2.1 million to fully remediate the damage to national forest lands.  Once that bill is paid, the case would be dismissed

BLM CASES

• BLM Oregon IVM-RL Project

New lawsuit

The Applegate Siskiyou Alliance has challenged the BLM’s 10-year “integrated vegetation management for resilient lands program,” or IVM-RL, for more than 680,000 acres in the region, as well as the specific Late Mungers project, which involves 830 acres of commercial harvest and 7,500 acres of thinning.  Up to 20,000 acres of commercial logging, 60,000 acres of small-diameter tree thinning, 70,000 acres of prescribed burning and 90 miles of road construction would be allowed over a decade.  The BLM did not prepare an EIS and did not identify specific sites necessary for a site-specific evaluation, allegedly in violation of NEPA.

• BLM Colorado RMP mineral withdrawal

Post-litigation

As a result of previous court challenges and settlements, the BLM has produced a new proposal for a resource management plan for Colorado’s Western Slope, which is currently open for public comments.  BLM says in the draft proposal it would bar industry access to lands with “no-known, low or medium” oil potential, as well as to acres that are striking for their wildlife, conservation or wilderness values. This would be a significant reversal of the current situation – it would mean closing 80 percent of the lands in the decision area managed by the Colorado River Valley Field Office to new oil leasing and 81 percent of the Grand Junction Field Office’s lands.  It would keep 93 percent of the Colorado River Valley Field Office’s high oil and gas potential lands open to leasing, but in the Grand Junction Field Office only about 44 percent of the high oil potential area would be available for leasing.  (Interestingly, per this article, the mountain bike industry is “neutral” – “if those companies weren’t there, the roads wouldn’t be either.”)

FISH AND WILDLIFE SERVICE CASES

• Garter snake critical habitat

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

On August 22, the Center sued the Fish and Wildlife Service for reducing the previously proposed critical habitat by 90% for the narrow-headed garter snake and the northern Mexico garter snake; both are threatened species.  The reduction was the result of eliminating unoccupied critical habitat.  The riparian habitat they use is found on the Tonto, Coronado, Coconino and Prescott National Forests, and BLM and National Park lands, and occupied habitat there was designated as critical habitat.  (The news release includes a link to the complaint.)

• Eastern hellbender listing

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

On September 6, the district court vacated the Fish and Wildlife Service’s decision to not list the eastern hellbender as threatened or endangered. The court found that the Service unlawfully relied on conservation measures that had not yet been implemented and determined effective and that did not address sedimentation, a primary threat to the species.  The large salamander lives across the eastern U. S.  It was previously listed as endangered in Missouri.  (The news release includes a link to the opinion.)

(The Center for Biological Diversity doesn’t always win these listing/critical habitat lawsuits.  Here, they lost their challenge to a 90-day negative finding by the FWS for listing the Tucson shovel-nosed snake, the court deferring to the use of genetic testing by the Fish and Wildlife Service to define the range of the subspecies.)

FOREST SERVICE CASES

• Helena-Lewis & Clark NF forest/travel plans

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.)

• Caribou-Targhee NF Kilgore Gold mining project

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.)

• Freemont-Winema NF logging projects

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.

• Mountain Valley Pipeline

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.

• San Bernardino NF North Big Bear

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.)

• Bitterroot NF Mud Creek Project

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.)

• Kootenai NF Black Ram Project

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.)

• Payette NF gold mine, Nez Perce Tribe

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.)

• Desoto NF archaeological site

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

• Utah potash mine

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.

• Wyoming gas drilling

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

• Arizona Sonoran Desert National Monument grazing

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

• Utah national monuments

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.)

• Wyoming air quality

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

• Sierra NF fuel treatments

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.

• Mexico border wall

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.)

• FEMA Tillamook State Forest road

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.)

• Cascade-Siskiyou National Monument expansion

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 9^th 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.)

• Los Padres NF forest health project

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.

• Mt. Graham red squirrel critical habitat

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.  

• BLM Nevada Let’s Go Lithium project

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.

• BLM Tres Rios Resource Management Plan FOIA

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.)

• Fremont-Winema NF projects

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.

• 33 species listings

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.

• Nantahala Pisgah NF revised forest plan

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.

• Mountain Valley Pipeline

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.

• Coronado NF livestock grazing

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.

• BLM Wyoming wind energy transmission line

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.”

• Snake River dams

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.