Litigation

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.”

Public Lands Litigation – update through June 23, 2023

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Court decision in Center or Biological Diversity v. U. S. Bureau of Land Management (D. Idaho)

On June 2, the district court vacated a set of approvals by the BLM authorizing development of the Caldwell Canyon phosphate mine in southeastern Idaho.  The court had reversed the decision in January, and now decided that, “to allow P4 to continue construction with the acknowledged potential risks to sage-grouse while the BLM addresses its NEPA violations runs contrary to the purpose of NEPA.”  The news release includes a link to the opinion, and there is additional background here.

New lawsuit

On June 1, the State of Wyoming filed a petition for judicial review in the Wyoming Federal District Court that alleges the Department of Interior failed to meet the 12-month deadline for making a determination on Wyoming’s petition to delist the grizzly bear population in the Greater Yellowstone Ecosystem.  (In making the announcement, state officials accused USDI of “hibernating” on the deadline.)  Additional background is provided here.

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

On June 5, the U. S. Fish and Wildlife Service settled this case (discussed here) potentially affecting forest management across the south by agreeing to reconsider (by August 2025) its denial of the plaintiff’s petition to list the southern hognose snake under the Endangered Species Act.

Court decision in Swan View Coalition v. Steele (9th Cir.)

On June 9, the 9th Circuit dismissed as moot an appeal of the Flathead National Forest revised forest plan.  This was discussed here, and local media coverage is here.

Settlement of WildEarth Guardians v. Bail (W. D. Wash.)

On June 12, the Forest Service agreed to complete a new NEPA process to amend the Forest Plan for the Okanogan-Wenatchee National Forest that would identify which existing grazing allotments are suitable or unsuitable for domestic sheep grazing.  The plaintiffs had argued that the Forest Service continued to authorize domestic sheep grazing on allotments near bighorn herds despite knowing about the threat of spreading disease as far back as 2010.  They had appealed an adverse district court decision to the 9th Circuit.  The article includes a link to the settlement agreement.

New lawsuit:  San Juan Citizens Alliance v. Padilla (D. Colo.)

On June 14, the San Juan Citizens Alliance and the Center for Biological Diversity sought judicial review of the Salter Timber Project on the San Juan National Forest.  The project would involve single tree selection logging of ponderosa pines up to 26 inches in diameter, as well as commercial and pre-commercial thinning. It would also include the development of up to 117 miles of temporary roads in undisclosed locations.  Environmental groups had asked for a 20-inch diameter limit.   Plaintiffs claim site-specific timber sale decisions will be made in individual contracts without NEPA analysis, and the project required an EIS rather than an EA, as well as other NEPA claims.  The news release includes a link to the complaint.  Local media coverage is here.

New lawsuit

On June 14, the Alliance for the Wild Rockies and Native Ecosystems Council sued the Idaho Panhandle National Forest over its Buckskin Saddle Integrated Restoration Project, which calls for 13,005 acres of commercial logging and another 6,469 acres of noncommercial logging, and 33 miles of new road construction over 15-20 years.  Plaintiffs are concerned about ESA-listed and other wildlife species found in the “old-growth forests,” and disagree that Douglas-fir trees need to be removed for ecological reasons.

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

On June 14, the 9th Circuit dismissed this case for lack of standing to sue.  Plaintiffs alleged that Forest Service grazing decisions would lead to an increase in the number of wolf attacks on livestock, which in turn would cause the Washington Department of Fish and Wildlife to kill more wolves. The court held that, “the lethal removal of wolves cannot fairly be traced to the Service’s livestock grazing decisions, and a remedy that required the Service to make different grazing decisions would not redress the harm.”

New lawsuit:  Patagonia Area Resource Alliance v. U. S. Forest Service (D. Ariz.)

On June 20, eight conservation groups filed a complaint challenging the Coronado National Forest’s approval of the Sunnyside and Flux Canyon exploratory mineral drilling projects without considering the cumulative effects of the area’s mining activity on water in the Sonoita Creek drainage or on endangered species including the Mexican spotted owl.  The article includes a link to the complaint, and we have discussed this here.

New lawsuit:  Wilderness Watch v. Jackson (D. Idaho)

On June 20, Wilderness Watch, Great Old Broads for Wilderness, Friends of the Clearwater and Friends of the Bitterroot filed a complaint against the Forest Service regarding administration of aircraft landing strips in the Frank Church-River of No Return Wilderness by the Payette National Forest.  The complaint states that the Forest Service violated the Wilderness Act and other requirements by performing maintenance on the airstrips and not citing pilots who landed there in non-emergency situations in violation of the wilderness plan.  They specifically challenge a 2018 Directive issued by the Regional Forester for the Intermountain Region to maintain four airstrips for public use.

Court decision in Kettle Range Conservation Group v. U. S. Forest Service(E.D. Wash)

See our previous discussion of this June 21 decision here.

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

On June 22, this court action, filed by Earthjustice on behalf of several environmental groups, argues that the San Joaquin Valley is already highly polluted, causing local residents to suffer negative health effects.  The lawsuit challenges BLM’s compliance with federal laws, including the Clean Air Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, the Mineral Leasing Act, and the Freedom of Information Act.  The press release includes a link to the complaint.

New lawsuit

The Lithium Nevada Corporation filed a lawsuit last week against a prayer encampment aimed at stopping the construction of the Thacker Pass Lithium Mine in Nevada.  The lawsuit asks the court to ban seven individuals and environmental watchdog organization Protect Thacker Pass from the construction sites of the lithium project and demands they pay millions of dollars in damages.  The article includes a link to a previous court decision, and we have discussed the tribal angle more here.

Potential frivolous lawsuit

A Wyoming state legislator is objecting to the largest purchase of private property by the BLM in the state’s history.  He claims that the state legislature has the authority to approve or disapprove of land transfers to the federal government, as well as whether to grant the federal government “exclusive jurisdiction” to dictate management over lands it acquires in the state.  His objections to the “conservation purchase” of the 35,670-acre Marton Ranch in 2022 were characterized as “reminiscent of the Sagebrush Rebellion” (50 years ago already).

 

 

 

 

Court vacates Colville NF project and parts of its revised forest plan

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This was going to be a “featured” case in a litigation summary post, but it turned out to be long enough for its own post.  Besides, forest plan litigation is rare, especially Forest Service losses, and this case covers a number of NFMA and NEPA issues that are frequent topics on this blog.  (And, full disclosure, I had something to do with it.)

  • Court decision in Kettle Range Conservation Group v. U. S. Forest Service (E.D. Wash):  Sanpoil clean

On the first day of summer, the district court vacated the decision for the Sanpoil Project on the Colville National Forest, and also vacated the relevant portions of the 2019 revised forest plan.  The portions of the revised plan at issue replaced the Eastside Screens 21-inch diameter limit with a guideline to protect large trees, but included many exceptions.  It also did not designate a minimum amount of old growth habitat to retain.

The court held that, “the agency failed to explain how the 2019 Forest Plan maintains the viability of old-growth-dependent species.”  More specifically, “the agency erred by failing to demonstrate that its data and methodology reliably and accurately supported its conclusions about the viability of old-growth dependent species under each planning alternative, and depicted the amount and quality of habitat.”  (Note that the Colville plan was revised under the 1982 planning regulations, which had somewhat different language describing wildlife viability.  However, this court did not rule on substantive compliance with the NFMA requirement, but rather found a failure to demonstrate compliance due to an inadequate administrative record based on the APA.)

The Forest stated that the selected alternative, Alternative P, provided a “high” viability outcome for these species and that the no-action alternative would not improve viability outcomes.  However, in the EIS, the data showed that “the No Action alternative provides more habitat than the selected alternative for three of the surrogate species,” and “creates the most late structure of any alternative.”  The Forest relied instead on an appendix in an associated Wildlife Report that employed a Bayesian belief model to assign letter grades to viability, which supported the rationale for selecting Alternative P.  The court explained:

Neither the EIS nor the Wildlife Report describe how the agency came to these scores for each species and action alternative. The agency did not define its methodology for assessing the letter grades, such as what factors it considered and the weight they were given. The grades assigned to each planning alternative lack explanation…  the agency acted arbitrarily and capriciously when it offered explanations that ran counter to the evidence before the agency and failed to satisfy the requirements of the NFMA.

The court also found that the Forest failed to discuss the amount and quality of habitat and population trends (a requirement of the 1982 regulations).

The court also held that the forest plan EIS violated NEPA by failing to meaningfully address the original Eastside Screens Report.  The Forest simply argued that it needed more flexibility to achieve the desired conditions, including avoiding numerous site-specific amendments to deviate from the diameter limit in the Eastside Screens.  The Forest failed to include the original Eastside Screens Report in its administrative record, and did not adequately respond to public comments about the Eastside Screens.  The court stated:

Its absence demonstrates that the agency failed consider the scientific rationale for adopting the 21-inch rule before deciding to discard it. The agency did not respond to viewpoints that directly challenged the scientific basis upon which the final EIS rests…  In doing so, the agency violated the NEPA. The absence of the Eastside Screens Report also demonstrates that the agency did not consider an important aspect of the issue, as required by the APA.

… the agency did not consider negative impacts, if any, from (1) elimination of the 21-inch rule or (2) retention of the exceptions in the new guideline. The NEPA requires the agency to discuss and not improperly minimize negative effects of a proposed action…  In this case, the EIS did not assess how often the new guideline’s exceptions will be invoked and how the exceptions may impact the agency’s conclusions about the environmental effects and species viability.”

The Sanpoil Project also violated NEPA.  The EA simply assumed that the new forest plan guideline would protect old-growth trees.  The court held:

This conclusion was contrary to the evidence. The Sanpoil Project EA did not specify the frequency of which the new guideline’s exceptions would be invoked, despite the 2019 Forest Plan’s stated objective of preserving old-growth trees. The agency is not required to catalogue specific trees that will be removed, but in this case, the agency was required to provide site-specific details at the project planning stage to provide a sufficient picture of the Sanpoil Project’s cumulative effects… Without sufficiently specific information about site impacts, the Sanpoil Project’s impact to old-growth trees and their dependent species is speculative.”

(This overlaps to some degree the issues surrounding “condition-based NEPA.”  The court even cites the Forest Service Handbook: “If the Agency does not know where or when an activity will occur or if it will occur at all[,] then the effects of that action cannot be meaningfully evaluated.”  It also is difficult to demonstrate consistency with the forest plan if the project documentation does not provide information about how a project is meeting forest plan requirements.)

The project also violated NEPA and NFMA by conducting “cursory analysis” of the effects of the project on gray wolves, wolverine, sensitive bat species, northern goshawk, and the western bumblebee.  Finally, the court found that NEPA requires an EIS for the Sanpoil Project because it “creates uncertain risks to old-growth forests and the wildlife dependent on them, and “sets a precedent for future actions that utilize the new old-growth guideline, each of which may be individually insignificant, but create a cumulatively significant impact when applying the new guideline.”  Moreover, the lack of quantified or detailed information about the Sanpoil Project’s impacts in this respect “is also highly controversial due to the same questions about its size and nature and effect of the action on old-growth dependent species.”

The court found that this “case” was ripe for judicial review “when the agency issued RODs for both agency actions” “because the Sanpoil Project is a site-specific action governed by the 2019 Forest Plan.”  The plaintiff had argued that forest plan decision challenge was ripe because it dealt with a forest-wide viability requirement rather than timber sale requirements found not ripe by the Supreme Court in its Ohio Forestry decision.  However, the plaintiff also argued that ripeness of forest plan issues could be based on this project decision implementing the plan.  It is not completely clear which rationale the court is employing.  The court also found that the plaintiff had exhausted administrative remedies by identifying large, old trees, wildlife viability and the Eastside Screens “thoroughly and consistently during the public comment process.”

Public Lands Litigation – update through May 31, 2023

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A number of high-level court decisions here.

New lawsuit:  Kettle Range Conservation Group v. Smolden (E.D. Wash.)

On May 12, the plaintiff challenged the Bulldog logging, thinning and prescribed burning project on close to 44,000 acres over many years on the Colville National Forest.  The area is considered a stronghold for the threatened Canada lynx, and the complaint alleges failure to properly consult with the U. S. Fish and Wildlife Service on how the project may affect lynx.  It also claims violations of NEPA and failure to ensure compliance with the forest plan’s lynx habitat requirements.

Notice of intent to sue

On May 15, the Center for Biological Diversity filed a formal NOI with the U. S. Fish and Wildlife over its failure to protect the Railroad Valley toad in Nevada under the Endangered Species Act.  The BLM has leased out land around the toad’s habitat to oil companies.  (The press release includes a link to the notice.)

  • Mountain Valley Pipeline

Forest Service action in response to a prior court decision

On May 15, the Forest Service issued a record of decision allowing the Mountain Valley Pipeline project to proceed through a 3.5-mile stretch of the Jefferson National Forest.  The decision amends the forest plan 11 times to allow the pipeline to cross the Forest and provides terms and conditions to include in a decision by the BLM to grant permits under the Mineral Leasing Act.  The pipeline is mostly complete, including some tree clearing on the national forest.  The U.S. Fourth Circuit Court of Appeals threw out two past Forest Service approvals of the Jefferson National Forest crossing in July 2018 and January 2022 (discussed previously here).

Court decision in Sierra Club v. Federal Energy Regulatory Commission (D.C. Cir.)

On May 26, the circuit court held that FERC had inadequately explained its decision to not prepare a supplemental analysis on erosion and sedimentation along the pipeline’s right-of-way.   It ordered FERC to either to prepare a supplemental environmental impact statement or to better explain why one isn’t necessary.  However, the court allowed construction to continue “in areas adjacent to wetlands.”  (The article includes a link to the opinion.)

HOWEVER, this long-running controversy may become moot if the debt ceiling legislation is approved as currently proposed.  According to the Washington Post on May 29, “The new legislation could nullify that decision and other outstanding court orders, experts said. Legislative language prohibits court oversight of decisions on MVP permitting from FERC and other federal agencies. It says Congress ratifies all permits and gives the Army Corps of Engineers 21 days after the bill’s passage to issue those permits.”

Court decision in Alliance for the Wild Rockies v. Petrick (9th Cir.)

On May 16, the circuit court reversed the district court and dismissed some issues for failure to provide sufficient notice to the government of its concerns that it violated the Healthy Forests Restoration Act, but remanded that the Hanna Flats project on the Idaho Panhandle National Forest.  The court agreed with the district court’s ruling that the Forest Service’s reliance on Bonner County’s Community Wildfire Protection Plan was insufficient to apply a categorical exclusion, but it disagreed with the way the district court defined “wildland urban interface.”  This led it to lift the injunction against the project while the district court addresses the remand.  (The article includes a link to the opinion.)

Court decision in Center for Biological Diversity v. U.S. Fish & Wildlife Service (9th Cir.)

On May 17, in a split decision, the circuit court set aside parts of the U.S. Fish and Wildlife Service’s 2014 designation of critical habitat for the jaguar in southeastern Arizona.  CBD had challenged the biological opinion on the Rosemont Mine on the Coronado National Forest, and Rosemont Mine had cross-claimed that the FWS had improperly designated two areas as critical habitat.  The court concluded that, based on its record, FWS improperly designated Unit 3 as “occupied” critical habitat (as of the time of listing in 1972) and that neither this nor another unit met the more demanding requirements to qualify as “unoccupied habitat.”   The court remanded the critical habitat designation, and so it could not address the effects of the mine on critical habitat.  (The article includes a link to the complaint.)  (A related case on the Rosemont Mine was discussed here.)

Notice of intent to sue

On May 18, the Environmental Protection Information Center notified the Fish and Wildlife Service that it is challenging an incidental take permit issued by that agency to Sierra Pacific Industries to “take” northern spotted owls when logging their land under a habitat conservation plan.  EPIC argues that the extent of take allowed would violate ESA by jeopardizing the northern spotted owl’s long-term survival. (The news release includes a link to the notice.)

Supreme Court decision in Sackett v. Environmental Protection Agency

On May 25, the Court limited the scope of federal jurisdiction under the Clean Water Act.  It decided in favor of private landowners who wanted to build a house on land including wetlands that would need to be filled, and for which the EPA would require a permit because they were “near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.”  The Court held that the permit was unnecessary because the wetlands lacked a “continuous surface connection” to “waters,” defined as “geographic[al] features that are described in ordinary parlance as `streams, oceans, rivers, and lakes'” (not “wetlands”).  There were no dissenting opinions but multiple disagreements with the reasoning in the opinion.  There has been a lot written about this issue, and here and here are a couple of takes on this decision.

Federal land management is subject to the Clean Water Act, and this holding could, for example potentially reduce the scope of the potential violations in the fire retardant case, especially if, as the first article suggests, it does preclude inclusion of all ephemeral features and the vast majority of tributaries  …

  • Fire retardant and the Clean Water Act

Court decision in Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Mont.)

On May 26, the district court found that the Forest Service had conceded that it violated the Clean Water Act when it aerially dropped fire retardant, a pollutant, into waterways without a permit.  However, the court did not enjoin the activity while a permit is being sought.  We’ve discussed this case here (where there is a link to the opinion).

Court decision in Western Watersheds Project v. Haaland (10th Cir.)

On May 25, the circuit court reversed a district court decision and reversed a decision by the Bridger-Teton National Forest authorizing livestock grazing for 10 years on land in the Upper Green River Area Rangeland (“UGRA”) in Wyoming.  The Forest Service and Fish and Wildlife Service violated the Endangered Species Act because the FWS biological opinion (BiOp) failed to “consider (1) a limit on lethal take of female grizzly bears, and (2) the UGRA Project’s likely contribution to the already-existing mortality sink (where mortality exceeds or nearly exceeds survival) for female grizzly bears in the Project area.”  The incidental take statement permitted “the killing of up to 72 grizzly bears” (as the plaintiffs put it), and did not distinguish females nor consider the more serious effects of female mortality.   This article provides more background on this issue.  (The news release provides a link to the opinion.)

The court also found that the project violated the forest plan and NFMA because the record contradicted the Forest’s conclusion that the project would provide adequate forage and cover for migratory birds.  It upheld the application of the forest plan’s forage utilization requirement to sensitive amphibians.  The court remanded the decision to the agencies “to address the deficiencies in the BiOp and the ROD,” but did not vacate the decision because “deficiencies in the BiOp and the ROD are curable upon remand to the agencies, and vacatur would cause disruption.”

A year after the hunters were declared not guilty in Wyoming criminal court, a federal judge ruled that the four Missouri residents didn’t trespass when they corner-crossed through the airspace over private land in Wyoming during their 2020 and 2021 hunting trips. The judge noted that “corner crossing on foot in the checkerboard pattern of land ownership, without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.” The wealthy landowner had sought more than $7 million in alleged damages, but the judge said that even if they had trespassed, any damages to the plaintiff would be “nominal.”  We discussed this case here.

A California man was convicted of obstructing an investigation into why his plane crashed, apparently into the Los Padres National Forest.  Blame it on YouTube.

Public Lands Litigation – update through May 12, 2023

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CLEVER HEADLINE AWARD: “C’est levee: Coconino NF has no plans to repair Lower Lake Mary levee.”

FEATURED RECOMMENDATIONS

Some federal court cases are heard by a “magistrate” judge, who then makes recommendations to the judge who will formally issue an opinion.  I haven’t often seen the judge change the recommended outcome of a case.  (Maybe someone can explain this a little better.)  There are two very interesting recommendations pending that I am aware of.  Both would deny motions to dismiss by the agency.

Magistrate’s recommendation in Cascadia Wildlands v. Adcock (D. Or.)

On April 21 the magistrate recommended to the district court that it not dismiss this NEPA challenge to Oregon BLM’s Siuslaw Harvest Land Base Landscape Plan and EA.  The BLM undertook the Landscape Plan pursuant to the Northwest Resource Management Plan (“RMP”), and it lays out a multi-decade strategy for timber harvest, but does not authorize particular projects.  Standing to sue is routinely established by environmental groups for public land litigation.  However, the BLM argued here that plaintiffs did not have standing because the Landscape Plan is a programmatic decision, and does not decide precisely where within the project area the BLM will ultimately log, and it therefore cannot cause an imminent injury to Plaintiffs.

The magistrate disagreed: “An agency need not have authorized an implementation action for a court to find that an area will surely be affected where “there is no real possibility” that agency will not pursue any site-specific projects under the planning framework.”  Even though specific units had not been selected, the decision represents a commitment because the EA states that the agency would not be authorized to elect a non-logging alternative for a specific project because it “would not be in conformance” with the RMP.  Plaintiffs were not required to tie their injuries to specific units within the project area to establish standing, so the plan’s lack of site-specificity did not prohibit them from establishing standing.  The claim should also be considered ripe for judicial review because “the imminence or occurrence of site-specific action is irrelevant to the ripeness of procedural injuries (such as NEPA violations), which are ripe and ready for review the moment they happen.”

(This “program” appears to be similar to “condition-based” management “projects” in the Forest Service, but it’s less clear there would be no additional NEPA for specific projects.)  (The article includes a link to the recommendation.)

Magistrate recommendation in Blue Mountains Biodiversity Project v. Wilkes (D. Or.)

In October, 2022, plaintiffs challenged the South Warner Project on the Fremont-Winema National Forest for employing the Eastside Screens amendment adopted in January, 2021 (which is under separate litigation).  Although the Ochoco National Forest Supervisor was initially listed as the Responsible Official for the amendment, the Decision Notice was signed by then-Under Secretary for National Resources and Environment James Hubbard.

On April 27, the magistrate judge concluded that, “When the Under Secretary is not involved with a proposed plan amendment before signing a Decision Notice, the Under Secretary cannot later retroactively claim that the Under Secretary proposed that plan amendment by simply signing the Decision Notice,” and doing so, “does not exempt a lower ranking official’s proposed plan amendment from the objection process.”  (Objection regulations create this exemption if the Under Secretary “proposes” an action.  The failure to allow objections is also part of the broader Eastside Screens lawsuit.)  (The article includes a link to the recommendation.)

THE MONTH OF THE (WILD) HORSE

New lawsuit:  Horses of Cumberland Island v. Haaland (N.D. Ga.)

On April 12, animal rights groups and a Cumberland homeowner sued the National Park Service seeking removal of Cumberland Island National Seashore’s feral horses.  The NPS management has allegedly caused harm to both the horses and the natural resources of the Seashore, violating the National Park Service Organic Act, Wilderness Act and Endangered Species Act (related to loggerhead sea turtle critical habitat.)

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

On April 27, the three wildlife-oriented organizations and three sportsman’s groups sued the Forest Service over its management of wild horses along the Salt River on the Tonto National Forest.  The parties allege that the Forest violated NEPA by failing to consider the environmental impact of a 2017 agreement (and a February update) with the Salt River Wild Horse Management Group that allegedly allows continued overgrazing to harm wildlife species. The carrying capacity has been found to be as low as 20 horses, and the current population is estimated to be as high as 600.  (The article includes a link to the compliant.)

New lawsuit:  American Wild Horse Campaign v. Stone-Manning (D. Wyo.)

On May 10, a coalition of wild horse advocates, environmentalists and academics filed suit against the U.S. Department of the Interior over a land use plan amendment that would eliminate 2.1 million acres of wild horse habitat in the Red Desert area of and slash by one-third the allowed population of wild horses in the state Wyoming.  The plan allegedly violates the Wild Free-Roaming Horses and Burros Act, the Administrative Procedure Act, and the National Environmental Policy Act, arguably to promote livestock grazing.   (The article includes a link to the complaint.)

OTHER LITIGATION

Supreme Court accepts Loper Bright Enterprises v. Raimondo

The Supreme Court has announced that it will hear a case about commercial fishing rules, which could have far-reaching effects on federal agency discretion to implement laws.  The Court will consider repealing the “Chevron Doctrine,” which states that courts should defer to the government’s experts’ interpretation of ambiguous statutes.  Much of the concern is about the future ability of government agencies to regulate the private sector, and the effect on land management agencies may be less obvious.  However, the Chevron Doctrine has been used in relation to the Forest Service’s interpretation of its Organic Act, the Wilderness Act, ANILCA, and the Clean Water Act.  At least one court has granted Chevron deference to the Forest Service interpretation of NFMA (public comment requirements), and NEPA (interpretation of “extraordinary circumstances”).  The Fish and Wildlife Service’s interpretations of the Endangered Species Act could also be affected.

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

On May 4, the plaintiff sued the Fish and Wildlife Service for failure to respond to its 2019 petition to prohibit all use of pesticides in critical habitat for listed species unless it has previously consulted with the Environmental Protection Agency to assess the pesticides’ impact on listed species (or if the pesticides are used to control invasive species or promote human health and safety).  The lawsuit complaint asks the court to order FWS to respond to the petition within 90 days.  (The article includes a link to the complaint.)

Court decision in Neighbors of the Mogollon Rim v. U. S. Forest Service (9th Cir.)

On May 5, the circuit court reversed a district court decision and partially vacated the EA (with respect to the pasture at issue) used by the Tonto National Forest to authorize grazing on several allotments, parts of which had been vacant for many years.  The court held, “The Forest Service failed to give full and meaningful consideration to plaintiff’s proposed alternative, which maintains the status quo as to the closure of the Colcord/Turkey Pasture to grazing.”  The court rejected the Forest Service defense that it was unnecessary because it was “within the range of” the two alternatives considered (action and no-action).  It also rejected the agency’s attempt to assign responsibility to neighboring landowners for the effects of trespassing cattle on their lands in the NEPA analysis.  (The article has a link to the unpublished memorandum opinion.)

New lawsuit

On May 5, the Ute Indian Tribe of the Uintah and Ouray Reservation filed a federal lawsuit accusing state agencies of racially discriminatory conspiracy to prevent the tribe from purchasing ancestral land just outside its reservation. In 2018, the Utah School and Institutional Trust Land Administration put it up for sale, but plaintiffs allege (based on a whistleblower account) that their winning bid was undermined by the losing bidder, the Utah Department of Natural Resources who wanted to manage it as a wildlife preserve with public access.

Notice of intent to sue

On May 8, The Center for Biological Diversity and Cascadia Wildlands notified the Federal Emergency Management Agency (FEMA), of their intent to sue with regard to FEMA’s decision to fund the repair and reopening of Cook Creek Road in the Oregon Coast Range.  They are concerned about Oregon Department of Forestry timber sales that would be enabled by the project, and their effects on Oregon Coast coho and marbled murrelets, both of which are protected as threatened species under the Endangered Species Act.  (The article includes an indirect link to the notice.)

Notice of intent to sue

On May 10, The State of Idaho sent a notice of intent to sue to the U.S. Fish and Wildlife Service over the Biden Administration’s failure to remove grizzly bears from the endangered species list.  The State had previously submitted a petition to delist the grizzly bears because the 1975 listing decision applies the ESA’s protections to an entity that is not a “species” as defined by the Act because it applied only to the “lower 48” population.  (This article includes a link to the Notice.)

Notice of intent to sue

The Flathead-Lolo-Bitterroot Citizen task force has sent a 60-day notice of intent to sue the United States Fish and Wildlife Service as well as the Montana Department of Fish, Wildlife and Parks because it says that as the state expanded trapping, snaring and hunting regulations, it failed to take safety precautions that would protect grizzly bears.

LEGISLATION

The 2018 appropriations bill exemption of forest plans from Endangered Species Act consultation when a new species is listed or critical habitat designated, which resulted from the “Cottonwood” litigation over Canada lynx, expired in April.  On March 23, The House of Representatives held a hearing on a bill that would specify there is not a need to reinitiate such consultations.  A similar bill was introduced in the Senate last session but not considered by the full Senate.  The attorney behind the Cottonwood decision discusses this legislation here.

On May 11, the U.S. Senate passed two Congressional Review Act (CRA) resolutions that would do Biden-administration rules implementing the Endangered Species Act.  One was the listing of the northern long-eared bat, and the other allows consideration of future conditions when designating critical habitat.  According to Defenders of Wildlife, along with a recent similar resolution involving the listing of the lesser prairie chicken the CRA “has never previously been used on the Endangered Species Act.” President Biden has vowed to veto both resolutions should they pass the House.

OTHER THINGS

FWS response to Desert Survivors v. U. S. Department of the Interior (N.D. Cal.)

On April 27, the Fish and Wildlife Service announced that it is reinstating its 2013 proposed rules to list the Bi-State distinct population segment of greater sage-grouse as threatened under the Endangered Species Act and to designate critical habitat, and that it is reopening the comment period.  The court had vacated the agency’s withdrawal of this proposed rule in March, 2020.  Species proposed for listing must be addressed in land management agency decision-making where they are present

The Wyoming Supreme Court has upheld Albany County’s 2021 approval of the proposed Rail Tie Wind Project on private land by rejecting a local landowner’s bid to block the project.  The challenge was to the county permitting process rather than the federal EIS, and garnered objections from close to 50 local landowners.  Alternative energy will clearly not be immune to NIMBY challenges.  (The article includes links to other news about Wyoming’s transition to renewable energy.)

 

 

Public Lands Litigation – update through April 25, 2023

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Court decision in Central Oregon Landwatch v. Connaughton (9th Cir.)

On October 23, the circuit court upheld a special use permit granted by the Deschutes National Forest to the City of Bend to upgrade its Bridge Creek intake facility, construct a new pipeline, and operate the system for 20 years.  The court found that the permit was consistent with the forest plan’s Inland Native Fish Strategy guidelines to “avoid effects that would retard or prevent attainment of the [interim water temperature Riparian Management Objectives (RMOs) established by INFISH] and avoid adverse effect on inland native fish.”  The court also found that the EA’s failure to evaluate a “no diversion” alternative was not arbitrary or capricious, and that the analysis of climate change did not have to be quantitative because it affected streamflow in both alternatives equally.  (The link to the opinion at the end of the article works.)

Court decision in Gescheidt v. National Park Service

On February 27, the district court held that the Park Service has no statutory duty to revise its 1980 General Management Plan for the Tomales Point portion of the Point Reyes Seashore to address the fact that elk are dying from starvation and dehydration as a result of a fence that limits their movement into areas that would compete with livestock.

Court decision in Great Basin Resource Watch v. U. S. Department of the Interior (D. Nev.)

On March 31, the district court vacated the BLM’s approval of Eureka Moly’s planned molybdenum mine about 250 miles east of Reno.  The judge cited the 9th Circuit’s ruling in an Arizona case (Rosemont Mine) last year that upended the government’s long-held position that the 1872 Mining Law conveys the same rights established through a valid mining claim to adjacent land for the disposal of tailings and other waste without having to show that valuable minerals are present there.  This article provides more background and discusses proposed legislation to reverse these rulings.

New lawsuit:  Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Or.)

On April 10, four environmental groups sued the BLM over its approval of the Programmatic Integrated Vegetation Management for Resilient Lands Program and the Late Mungers Project Determination of NEPA Adequacy.  The program was not specific about where logging would occur, but would include late successional reserves established in the Northwest Forest Plan which would allegedly be inconsistent with that plan.  The complaint also alleges a violation of NEPA for failure to prepare an EIS for the Program.  (The press release includes a link to the complaint.)

Court decisions in West Virginia v. EPA (E.D. N.D.), and Kentucky v. EPA (E.D. Ky., 6th Cir.)

On April 12, following the decision in February in Texas v. EPA, (which affected Texas and Idaho, noted here), the North Dakota district court issued an injunction against the Biden Administration’s Clean Water Act regulations covering 24 more states.  In addition, a March 23 opinion barring a similar challenge in the Kentucky district court was reversed by the 6th Circuit Court of Appeals on April 21, which granted a stay of implementation.  (There lots of links in the article.)

In case you haven’t been keeping up, there’s a summary provided here:

  • The 2015 Obama WOTUS attempted to expand the types of waterways under federal protection. Various states successfully sued to stop its implementation.
  • The Trump Navigable Waters Protection Rule reduced the number of waterways under federal protection. It was implemented in 2020 and was repealed by a federal judge in 2021.
  • The Biden 2023 WOTUS rule (now being litigated) returned the U.S. to a definition put in place during the Reagan administration and observed until 2015.

These cases are backing up behind a pending Supreme Court decision in Sackett v. EPA, which will determine whether the 9th Circuit applied the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act.

Notice of intent to sue

On April 12, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue for reducing critical habitat for two endangered snakes (the narrow-headed and northern Mexican garter snakes) by more than 90% from what it originally proposed to protect these species found in riparian areas.  The Forest Service provided substantial comments on the original proposal, including that proposed critical habitat would affect numerous livestock grazing allotments on the Tonto National Forest.  Critical habitat would be designated there and on the Gila, Apache-Sitgreaves, Prescott and Coconino national forests and BLM lands.  The news release contains a link to the notice, and additional background is provided here.

New lawsuits

On April 17, Protect the Public’s Trust, which describes itself as an unincorporated association dedicated to restoring public trust in government, filed lawsuits against the Department of the Interior and the BLM for failing to meet Freedom of Information Act requirements to provide documents involving communications between agency officials and Somah Haaland, who is the daughter of Deb Haaland, the Secretary of the Interior.  Somah Haaland has lobbied lawmakers as a media adviser for the Pueblo Action Alliance in support of a drilling moratorium around Chaco Culture National Historical Park in northwest New Mexico, and the request focuses on a movie about the protection efforts.  The FOIA request was made on January 2.

(Family ties seem to be important to some these days; Hunter Biden comes to mind.  Here’s an example of how more transparency might play out in such situations.)

Preliminary injunction granted in Center for Biological Diversity v. U. S. Forest Service (D. Mont)

On April 24, the district court enjoined the Knotty Pine Project on the Kootenai National Forest.  The project would add 3.76 miles of road to the road system, 1.2 miles of temporary road construction, 35 miles of road maintenance, and 4.04 miles of road storage, and would include commercial harvests on 2,593 acres, non-harvest fuel treatments on 4,757 acres, precommercial thinning on 2,099 acres, and 7,465 acres of prescribed burning. The court said the agencies failed to adequately account for the harm to grizzly bears in the Cabinet-Yaak Ecosystem Recovery Zone from illegal roads when they authorized the project.  The judge pointed out that the forest plan said any road found to have illegal use would be considered an open road for that year, so such roads should be considered in the calculation of open roads relative to compliance with forest plan road density requirements.  The article includes a link to the opinion.  Plaintiffs provide additional background here.

Court decision in Murphy Company v. Biden (9th Cir.)

On April 24, the circuit court upheld the expansion of the Cascade-Siskiyou National Monument made by President Obama in January 2017 against a challenge by timber interests.  The court found that the expansion did not violate the Oregon and California Lands (O&C) Act.  Cascade-Siskiyou is the only national monument in the nation specifically established to protect biodiversity.  “In rejecting Murphy’s lawsuit, the Ninth Circuit today definitively concluded that conserving O&C Lands for their ecological values is consistent with the law,” said Susan Jane Brown, senior attorney with the Western Environmental Law Center.  (The news release contains a link to the opinion.)

On April 24, the Supreme Court turned away five appeals by oil companies of lower court decisions that determined that the lawsuits seeking damages for climate change belonged in state court, a venue often seen as more favorable to plaintiffs than federal court.  The lawsuits were filed by the state of Rhode Island and municipalities or counties in Maryland, Colorado, California and Hawaii.

Notice of intent to sue

On April 25, the Center for Biological Diversity, Sierra Club, West Virginia Highlands Conservancy, Appalachian Voices, Appalachian Mountain Advocates, Greenbrier River Watershed Association, and Kanawha Forest Coalition notified the Forest Service of their intent to sue related to the Forest Service’s approval of a road use permit authorizing SF Coal Co. to haul coal through the Monongahela National Forest, and related road reconstruction work.  They claim that the Forest Service failed to consult with the Fish and Wildlife Service regarding the effects on listed species and critical habitat in the Cherry River watershed, as well as NEPA violations.  (The press release includes a link to the notice.)

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

On April 25, three conservation groups sued the Department of the Interior for failing to respond to a rulemaking petition to phase out oil and gas extraction on federal public lands, and a subsequent notice of intent to sue.  The petition was submitted in January, 2022.  The Administrative Procedure Act requires federal agencies to initiate rulemaking or provide a substantive response to rulemaking petitions within a reasonable timeframe. This lawsuit alleges that the administration’s failure to respond to the petition constitutes an unreasonable delay given the urgency of the climate crisis.  (The press release includes a link to the complaint.)

Public Lands Litigation – update through April 10, 2023

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New lawsuit:  Western Watershed Project v. U.S.D.I (D. Nev.)

On March 23, Western Watershed Project and the Center for Biological Diversity sued the BLM to stop a vegetation removal plan for over 380,000 acres near Great Basin National Park in the eastern part of Nevada near the Utah border.  The South Spring Valley and Hamlin Valley Watershed Restoration Plan would remove “invasive” pinyon pine and juniper trees.  The lawsuit says the EA failed to adequately analyze harm from the project, partly because it did specify where the activities will occur nor provide site- or species-specific information about the affected environment, and the project failed to comply with land use plans.  (The article has a link to the complaint.)

Court decision in North Cascades Conservation Council v. U. S. Forest Service (9th Cir.)

On March 27, the  circuit court issued a memorandum opinion affirming a district court decision upholding the South Fork Stillaguamish Vegetation Project on the Mt. Baker-Snoqualmie National Forest.  It will harvest trees younger than 80 years, but in areas designated as late successional and riparian reserves.  The court held that the Project will not violate the 1994 Northwest Forest Plan’s prohibition against a “net increase in the amount of roads” in the Project area. It also held that the forest plan required habitat to be evaluated for the forest as a whole rather than within a project area, and it upheld the Biological Evaluation for the Project.  The project also did not violate a plan amendment requiring pre-disturbance surveys because the Puget Oregonian snail is not documented to occur in the Project Area.  The Project complied with NEPA requirements for effects on wildlife and for a range of alternatives.  (However, the court also strangely faulted the plaintiffs for offering “no explanation of how their alternatives would be funded.”)  This article provides more details.

Court decision in North Dakota v. U. S. D. I. (D. N.D.)

On March 27, the district court ordered the BLM to resume quarterly sales of oil and gas leases on public lands in North Dakota after holding that the agency “very likely violated their mandatory statutory duties to plan and timely complete mandatory analyses of individual parcels in North Dakota.”  It had made no ‘determinations of availability’ in North Dakota during Q4 2022, following President Biden’s executive order in 2021 “pausing” the quarterly lease sales required by the Mineral Leasing Act.”  (The article has a link to the opinion.)

Court decision in Cascadia Wildlands v. Bureau of Land Management (D. Or.)

On March 27, the district court granted summary judgement in favor of the BLM and upheld a 2020 rule eliminating the agency’s protest process.  Intervenor American Forest Resources Council stated, “Even without the BLM’s process, the agency’s level of public engagement during project planning is consistent with the procedures of other agencies, like the U.S. Forest Service, and continues to provide for an administrative appeals process to the Interior Board of Land Appeals.”  (The article includes a link to the opinion.)

On March 27, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue the agency for failure to respond within a reasonable time to the “Petition for Rulemaking to Protect Endangered Species from Pesticides by Restricting Pesticide Use in Critical Habitat” (Petition), dated January 7, 2019.  It mentioned the California spotted owl as one of the species affected by pesticides, and cited 40 “highly imperiled, narrowly endemic species that would receive the greatest benefit from a prohibition on the use of pesticides within critical habitat.”

Supreme Court decision Wilkins v. United States

On March 28, the U.S. Supreme Court issued a 6-3 decision allowing a Quiet Title Act lawsuit to proceed by two landowners attempting to close off public access to Bitterroot National Forest lands.  The court found that the statute of limitations on a 1962 easement with the Forest Service did not deny the landowners standing to pursue their claim that the Forest Service allegedly altered the terms of the easement to allow public use of the Robbins Gulch road.

Preliminary injunction in Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Ind.)

On March 29, the district court issued a preliminary injunction against the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest, in particular against an imminent prescribed burn.  The project is expected to last between 12 and 20 years, during which time approximately 13,500 acres of forest will be burned, 4,000 acres will be logged and herbicide will be applied to 2,000 acres.  Plaintiffs are concerned about effects on Lake Monroe, a drinking water source, and claim that the Supplemental Information Report does not comply with the court’s earlier reversal of this project. The court agreed that plaintiffs are likely to succeed on the merits, but also ordered the plaintiffs to pay an $11,596 bond, 10% of the amount Forest Service said it was losing due to the delay.  (The article includes a link to the opinion.)

Court decision in Ohio Environmental Council v. U. S. Forest Service (S.D. Ohio)

On March 30, the district court ruled that the Forest Service violated NEPA with its decision to log 2,700 acres, including 1,600 acres of clearcutting, in the Wayne National Forest’s Sunny Oaks Project.  The judge wrote, “The Forest Service has not provided any quantifiable criteria for assessing oak regeneration, either before or after a harvest.  Instead, the Project relies on vague quantitative triggers, like “enough” oak regeneration or a “need” for more.”  The court ordered additional briefing on remedies.  (The article includes a link to the complaint.)

The court dismissed a claim related to the mycorrhizal network associated with oak trees because plaintiffs did not properly raise it in their administrative objection.  The court also found no violation of a forest plan standard “to retain a minimum of 12 live trees per acre (averaged over the cutting unit) of any species that are six inches or more dbh with large areas of loose bark…”  The Forest Service had found that there were currently only six live trees per acre meeting these requirements, that oak trees did not provide the desired bark condition, and the current majority of live trees with more than six inches dbh and large areas of live bark are shagbark and shellbark hickory trees, which are already required to be retained under another forest guideline.  The court accepted the survey data over arguments offered by plaintiffs that oak trees should be protected because they provide the desired bark conditions, and accepted that protecting these other trees would meet the intent of the standard where the specified conditions could not be met.

(I’ve mentioned a concern about this issue in the case before.  I would have to interpret this opinion to mean that in this case the forest plan standard prohibits them from logging any oak trees that have the requisite bark conditions (but there aren’t any).  This would be similar to site-specificity issues involving large trees – the project analysis for NEPA and forest plan consistency needs to look at individual trees that would be logged to determine plan compliance and effects.)

  • Mountain Valley Pipeline

Court decision in Sierra Club v. West Virginia Department of Environmental Protection (4th Cir.)

On April 3, the circuit court found several defects in the review the West Virginia Department of Environmental Protection conducted before issuing a Clean Water Act permit for the Mountain Valley Pipeline that would cross the Jefferson National Forest.  The court found that 139 prior state stormwater permit violations and dozens of state water quality standards violations warranted closer scrutiny, and, “In the face of such a history, it is arbitrary and capricious for an agency to predict compliance without a rational explanation.”  (The article has a link to the opinion.)  (The history of this litigation is long, including here, and here.  But wait, there’s more …)

New lawsuit Appalachian Voices v. U. S. DI. (4th Cir.)

On April 10, lots of environmental organizations filed another petition in the circuit court (pursuant to the Natural Gas Act) challenging a recently issued new biological opinion and incidental take statement under the Endangered Species Act for the Mountain Valley Pipeline.  The BO addressed six threatened or endangered species and critical habitat for one of them.  (Previous consultation was reversed twice.)  (The article has a link to the petition.)

On April 3, the Idaho federal district court sentenced an Idaho man to one month in federal prison, payment of $8,000 in restitution and banned him from entering all National Forest System lands for a period of three years.  He had been removing more trees than his permit allowed to sell as firewood, and creating unauthorized roads and campsites in the Payette, Nez Perce and Boise National Forests.

New lawsuit:  Orutsararmiut Native Council v. U. S. Corp of Engineers (D. Alaska)

On April 5, three Yukon-Kuskokwim Delta tribes challenged the EIS used to support the U.S. Army Corps of Engineers’ 2018 wetlands (404) permit for the proposed Donlin open-pit gold mine on BLM lands.  Specifically, tribes are asking that the federal agencies be required to study impacts to downstream waters and villages from a potentially catastrophic tailings dam failure.  If developed, Donlin, located in the headwaters of the Kuskokwim River system, would be the largest open pit gold mine in North America.  (The article includes a link to the complaint.)

The Pueblo of San Felipe is suing the BLM for allegedly violating a federal land patent from 1864 by changing the boundary with the Pueblo to remove 695 acres of their patented land in New Mexico.

Court decision in Alliance for Hippocratic Medicine v. U. S. Food and Drug Administration (N.D. Texas)

On April 7, the district court for Northern District of Texas reversed the Food and Drug Administration’s approval of the abortion pill mifepristone, concluding the agency ignored safety concerns due to political pressure.  This is a high profile case involving the Administrative Procedure Act, which will likely get Supreme Court review of the amount of deference courts should give to administrative agencies.  The relevant holding from this court:

But the agency “must cogently explain why it has exercised its discretion in a given manner,” and that explanation must be “sufficient to enable [the Court] to conclude that the [agency’s action] was the product of reasoned decisionmaking.” A.L. Pharma, 62 F.3d at 1491 (quoting State Farm, 463 U.S. at 52). Defendants have not done so here. FDA’s 2016 Actions were not the product of reasoned decision-making.

The American College of Obstetricians and Gynecologists lambasted the decision as “inflammatory” and “brazenly” substituting “the court’s judgment for that of trained professionals.” Other agencies may find that the outcome of this case affects their discretion as well.

 

Public Lands Litigation – update through March 23, 2023

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Court-world has gotten a little busy lately, with some interesting cases.

Court decision in Capital Trail Vehicle Association v. U. S. Forest Service (D. Mont.)

On March 10, the district court determined that the Helena-Lewis and Clark National Forest had complied with NEPA, NFMA and the Travel Management Rule in adopting the Forest’s Travel Plan.  Plaintiffs were local nonprofit organizations that promote recreational motorized off-highway vehicles, and they objected to the Travel Plan’s restrictions on OHV use.

(The case addresses an interesting point that I’ve seen raised in relation to closing routes to motorized or mechanized uses – that there would be impacts on other users of concentrating that use in fewer areas.  Citing a 1996 9th Circuit case, Bicycle Trails Council of Marin v. Babbitt, which held that “NEPA does not require that an agency take into account every conceivable impact of its actions, including impacts on citizens’ subjective experiences,” this court concluded that possible overcrowding “does not qualify as an ‘environmental effect’ for the purposes of the NEPA cumulative effects analysis.”  It also added, “Adverse impacts caused by more concentrated OHV use may occur regardless because of the increasing demands on National Forests …”)

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

On March 15, the district court ruled that the U.S. Fish and Wildlife Service unreasonably delayed implementing its plan from 23 years ago to introduce grizzly bears into the unoccupied Bitterroot recovery zone, and failed to prepare a supplemental environmental impact statement based on new information about recent occurrences of grizzly bears in this ecosystem.  The court required the FWS to do the latter.  (The article has a link to the opinion.)

Notice of Intent to sue

On March 16, the Center for Biological Diversity, WildEarth Guardians, and Friends of the Earth notified the Department of the Interior and the BLM of their intent to sue under the Administrative Procedure Act for failure to respond within a reasonable time to their “Petition to Reduce the Rate of Oil and Gas Production On Public Lands and Waters to Near Zero by 2035” submitted in January, 2022.  The petition “provides a policy framework for managing the decline of federal oil and gas production to near zero by 2035.”  Said Taylor McKinnon with the Center for Biological Diversity, “The climate deadline to end oil and gas extraction in the U.S. is 2034, and the natural place to start is on land the federal government controls.”

Proposed listing

On March 17, in response to a Center for Biological Diversity lawsuit, the U.S. Fish and Wildlife Service proposed protection for the Texas heelsplitter (endangered) and Louisiana pigtoe (threatened) found in five southern states, and designated 1,860 river miles as critical habitat.  The proposed rule states, “With regard to silvicultural operations that occur on forested areas across the range of the species, we recognize that private timber companies routinely implement State-approved best management practices.  However, it is important to recognize that while BMPs reduce timber harvest impacts, they do not eliminate impacts; therefore, sensitive species and their habitats may still be impacted even when BMP guidelines are followed.”  (The news release includes a link to the proposed rule.)

Court decision in Texas v. EPA (S.D. Tex.)

On March 19, the district court issued a preliminary injunction to temporarily halt the enactment of the Biden administration’s new waters of the United States (WOTUS) rule within the borders of Texas and Idaho.  On March 20, the rule became effective throughout the rest of the United States.  Background on this issue about the scope of the Clean Water Act and other related litigation is included here.  (The article includes a link to the opinion.)

Motion for a preliminary injunction in Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On March 20, the Center and four other conservation groups asked the district court to enjoin the construction of logging roads for the Knotty Pine Project on the Kootenai National Forest.  The project would allow more than 5,000 acres of commercial logging over 10 years, and the groups oppose the project because all but 1,200 acres of the project lies within core habitat of the Cabinet-Yaak Grizzly Bear Recovery Area.  The lawsuit was filed last June.  Here is some additional background.

Court decision in WildEarth Guardians v. U. S. Forest Service (D. Idaho)

On March 21, the district court held that the Forest Service had not violated ESA with respect to the use of bait for hunting black bears in Idaho and Wyoming.  The plaintiffs were concerned about effects on grizzly bears of baiting for black bears.  The Forest Service generally allowed this practice on the national forests based on a 1995 national policy that had replaced the practice of issuing individual special use permits for bear-baiting, and allowed states to regulate.  The history of the bear-baiting policy is complicated and included prior consultation on grizzly bears that was withdrawn, but the court specifically found that the 1995 policy was not an agency action and did not establish future criteria for action (that did not already exist), and therefore consultation under ESA was not necessary,

(But what if the agency action that allows states to regulate bear-baiting is the forest plan, which is where forest-level management policy is considered and decided, and where some forest plans have included direction to regulate hunting?  Forest plans are subject to ESA consultation and reinitiation requirements.)

Notice of intent to sue

On March 22, the Center for Biological Diversity and Nokuse Education, Inc. filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the eastern population of gopher tortoises in 2022.  These gopher tortoises have allegedly lost 97% of the longleaf pine savannas they historically inhabited in Florida, Georgia, South Carolina and most of Alabama.  (Gopher tortoises in limited parts of Louisiana, Mississippi and western Alabama are already protected by the ESA.)

Settlement in Center for Biological Diversity v. Daugherty (D. Or.)

On March 23, the Center for Biological Diversity announced settlement of this lawsuit against the Oregon Department of Forestry for the incidental take of coho Salmon in the Tillamook and Clatsop State Forests.  The settlement will increase no-cut buffers around streams to 120 feet and increase the number of non-fish bearing and seasonal streams that receive protections.  It will also require an inventory of forest roads in the next five years.  Both of these conditions are expected to be included in a state-wide habitat conservation plan (which is also discussed here).  (The news release includes a link to the agreement.)

Court decision

On March 23, the district court ruled against the Reno-Sparks Indian Colony, Summit Lake Paiute Tribe, and the Burns Paiute Tribe, who argued that the Bureau of Land Management violated several laws when it permitted the Thacker Pass lithium mine to Lithium Americas.  In particular they object to the tribal consultation, as discussed here.  Construction has begun.

  • Fire damage claims

Court decision in Strawberry Water Users Ass’n v. U. S. A. (D. Utah)

On March 24, the district court dismissed plaintiff’s claims of negligence and trespass by the Wasatch-Cache and Uinta National Forests under the Federal Tort Claims Act alleging it failed to adequately suppress two wildfires in 2018, the Bald Mountain Fire and the Pole Creek Fire, which damaged their property.  To avoid the discretionary function exception from such claims against the federal government, plaintiffs would have to show that the action taken was not within the employee’s discretion pursuant to agency policy.  The court cited forest plan guidelines for wildfire use, a “Default Initial Fire Response Map,” and national fire policy and guidance in holding that the agency actions met the requirements for a discretionary function exception.  The court admonished plaintiff’s attorney for trying to distinguish this case from binding precedents by, “blatantly twisting the government’s written policy statements to make the case that the Forest Service intended to burn non-National Forest lands.  Here is some background information.

Plaintiff attempted to attack the cited map, which allowed wildfire use in these areas, for not complying with the NEPA process when it was adopted, but NEPA violations are outside of the scope of the Federal Tort Claims Act (and therefore damages could not be recovered for this procedural claim, even if valid).  (This court refused to address the merits of the NEPA claim, but I believe that the development of a map that established different management of fires in one area from another should have followed the NFMA forest planning (amendment) process, including NEPA.  There is no mention of the public participation in the decision to potentially allow wildfire use, but it seems like there would have been a lot of interest.)

Court decision in Schurg v. United States (9th Cir.)

On March 28, the appeals court held that determining how to consult with private landowners during the Lolo Peak Fire about fire suppression activities on their properties near the Lolo National Forest “was precisely the type of decision the discretionary function exception was designed to shield,” and denied their damage claims under the Federal Tort Claims Act.