Litigation

Scientist “Rebuking” Other Scientists in Court? OSU Scientists (and Others) at Loggerheads

by

Sorry for the headline.. couldn’t resist.

Thanks to Nick Smith, I found this article. I don’t think the context will surprise anyone. I think it’s a good article in terms of showing both sides.  Hopefully you can access it with a free sign-up, fortunately I had a “non-free” email account to use to sign up.

Law360 (March 31, 2023, 7:26 PM EDT) — An ecology professor at Oregon State University rebuked her colleague over his support for new regulations that weaken protections for large trees in the Pacific Northwest, telling a federal judge that scientists are divided on whether such trees pose a legitimate wildfire risk.

The new rules, which the U.S. Forest Service adopted in early 2021, replaced a set of restrictions known as the Eastside Screens that outlawed removing trees more than 21 inches in diameter from almost 8 million acres of national forests in the Cascade Mountain Range.

Contrary to what the Forest Service and a group of scientists have testified, large trees do not substantially contribute to wildfires, according to Beverly Law, a professor in the Department of Forest Ecosystems and Society at Oregon State.

Law, whose formal title is professor emeritus of global change biology and terrestrial system science, told an Oregon federal court on Wednesday that she joined more than 150 other scientists in opposing the Eastside Screens revision before it took effect. Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

That claim to a scientific consensus, Law told the court, “does not accurately reflect the state of the science generally on these topics, nor specifically the best available science and field verification of the condition of the forests at issue in this case.”

The interdepartmental spat — at a university whose mascot is the timber-minded Benny Beaver — comes amid litigation that six environmental groups initiated last June.

Forest Service officials, the groups claim, followed a shoddy review process before adopting the Eastside Screens amendment by forgoing a full environmental study and stifling public opposition.

A group of 15 scientists, led by Oregon State professor James Johnston, is defending the change in a not-yet-approved amicus letter, saying that forest-thinning activities have prevented ecological disasters and benefited the natural environment. Indeed, “no meaningful controversy among scientists exists” on that topic, they told the court in a Feb. 10 submission.

For those curious at this point, here are the 15 I. Derek Churchill, Ph.D., Forest Health Scientist, Washington State Department of Natural Resources 2. Don Falk, Ph.D., Professor, University of Arizona School of Natural Resources and the Environment 3. Jerry Franklin, Ph.D., Professor Emeritus, College of Forest Resources at University of Washington 4. Keala Hagmann, Ph.D., Research Ecologist, Applegate Forestry LLC
5. Lori D. Daniels, Ph.D., Professor, Department of Forest and Conservation Sciences at the University of British Columbia 6. Matthew Hurteau, Ph.D., Professor, Department of Biology at the University of New
Mexico 7. Meg Krawchuk, Ph.D., Associate Professor, College of Forestry at Oregon State University 8. Norm Johnson, Ph.D., Professor Emeritus, College of Forestry at Oregon State University 9. Peter M. Brown, Ph.D., Director, Rocky Mountain Tree-Ring Research 10. Robert W. Gray, Fire Ecologist, R.W. Gray Consulting, Ltd. 11. Scott Stephens, Ph.D., Professor of Fire Science, University of California Berkeley 12. Susan Prichard, Ph.D., Fire Ecologist, University of Washington School of Environmental and Forest Sciences 13. Thomas H. Deluca, Ph.D., Dean, College of Forestry at Oregon State University 14. Trent Seager, Ph.D., Director of Science, Sustainable Northwest. Back to the story:

But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.

That group told the Forest Service that weakening its tree protections was “highly controversial from a scientific perspective” and accused the agency of “rushing forward without adequately analyzing the impacts of the proposal on wildlife habitat, aquatic ecosystems, hydrological cycles and carbon values.”

Law, in a declaration filed by the environmental groups, cited past research indicating that large trees create a canopy that prevents sunlight from drying out the forest floor — a key to preventing wildfires. Debris on the forest floor accounts for around half of the combusting material in a wildfire, she noted, whereas large trees rarely ignite.

Johnston and federal regulators, Law argued, “are making a mountain out of a molehill.”

“We cannot know where wildfire will burn, yet they have eliminated protections for large trees based on a gross overstatement of the risk so that the Forest Service will be able to authorize the preemptive killing and removal of large grand fir trees across the entire landscape,” she said.

Adopted in 1994 as a broad series of timber regulations, the Eastside Screens included a blanket prohibition on removing any tree measuring more than 21 inches in diameter at “breast height,” a standard measurement in forestry.

The federal government began exploring possible amendments to that restriction in 2020, noting that climate patterns, long droughts and poor forest management have produced a worsening pattern of wildfires. Rather than a blanket protection, the rules adopted a year later by the Forest Service carry only a discretionary guidance to preserve some old and large trees.

That policy shift, the agency has argued in court, “satisfies all statutory requirements and enjoys strong scientific support.”

“The weight of scientific consensus counsels the Forest Service to mitigate [wildfire] threats by actively managing forests to favor more historically prevalent, fire tolerant species,” it said in February. “But that change is impossible if the Forest Service cannot cut any competing fire intolerant species over 21 inches in diameter.”

Two advocacy groups, the American Forest Resource Council and the Eastern Oregon Counties Association, are backing the revisions as a common-sense move that doesn’t spell ecological disaster.

But the environmentalists want to focus on their allegations of procedural errors. The groups, in a court filing on Wednesday, said the Forest Service “shortened the [amendment] process and swept substantial controversies under the rug.”

“This court need not wade into the scientific debate to determine that important steps were skipped,” they said, adding that “the failure to abide by the required procedural steps necessitates vacatur and remand of the Screens Amendment.”

The plaintiffs have sought to keep Johnston from getting amicus status, arguing in February that his opinion “is already both functionally and legally represented” because he consults for the Forest Service.

1) I also thought this was an interesting disciplinary observation..

Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

This seems like a fuels and fire behavior question to some extent, and also a tree physiology question.  It would be interesting to discuss why some scientists in some disciplines come to different conclusions based on what kinds of evidence. Not that this discussion will happen in the courtroom environment.

2) I wonder about the amicus letter thing.. Maybe our legal minds here can weigh in.  What is the difference between Law testifying (giving her opinions) and Johnston et al. giving their opinions to court? If 15 scientists signed on to the amicus letter and she thinks that isn’t kosher because Johnston takes bucks from feds, what about the others? Don’t all university scholars take bucks from feds? Is the difference consulting vs. research?

3) “But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.”

I don’t think he would have to.. isn’t that the role of the response to comments in the EA or EIS? Does her testimony note objections from Johnston?  It doesn’t seem like a legal thing to do that, but I don’t know.

4)  Yes, Johnston is helping Blue Mountains Partners as part of the CFLRP (as far as I understand). As part of that the people there decide what to be studied and have the funds to study it.  It seems to me that local scientific knowledge would be prioritized in some sense over non-local. So Johnston shouldn’t get paid to do that exceedingly useful work? I find this most concerning of all of this.

5) Wouldn’t it be interesting if OSU would  pioneer some kind of scientific joint-fact finding effort in which scientists could engage in discourse with the public about their research design, findings and interpretation? It could be a model for such disagreements and be a form of science education, both to the public and to students? They could bring in the best minds on environmental conflict resolution and other experts… And field trips!!!

Public Lands Litigation – update through mid-March, 2023

by

Supreme Court declines review of Safari Club International v. Haaland (9th Cir. 2022)

In 2022, the Ninth Circuit upheld a 2016 Fish and Wildlife Service regulation that, among other things, prohibits brown bear baiting on the Kenai National Wildlife Refuge in Alaska.  The circuit court had held that Congress has authority under the Property Clause of the Constitution to preempt state law and protect the wildlife on federal lands.  The Supreme Court chose not to hear an appeal by the plaintiffs.

Criminal conviction

A federal magistrate judge in Alaska sentenced a Fairbanks man to pay a fine for unlawfully conducting a tour on BLM land without a permit. Federal law requires tour operators to have a Special Use Permit to sell or operate tours on federal land in order to protect visitors and the land.

New lawsuit:  Colorado Off Road Enterprise v. USDA Forest Service (D. Colo.)

This case was filed on Februrary 13, and we have discussed it  here.

  • Multi-species ESA listing litigation

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

On March 7, plaintiffs filed a complaint alleging noncompliance with various deadlines in the process for listing 12 plants and animals under the Endangered Species Act.  They include two species of alligator snapping turtles, and a fish species threatened by lithium mining and geothermal development in Nevada.  (The article includes a link to the complaint.)

The next day, one of the eastern freshwater mussel species involved in the lawsuit, the round hickorynut, was listed as “threatened” under the Endangered Species Act (along with another mussel species, the longsolid).  Similar to the California spotted owl listing, an exemption from incidental take prohibitions was established, in this case for forest management that implements state-approved best management practices.  (The “good” news is that these species are found “largely where federally protected mussels already occur, so any increased regulatory burden is expected to be minimal.”)

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

Also the next day, on March 8, in an ongoing similar case involving delayed protection of 231 species, the district court reduced the number of species because the listing determination had been completed for one species, listing petitions had been withdrawn for four species, and inadequate notice of intent to sue was given for one species.  The court rejected a motion to dismiss the complaint with regard to 219 species because the violation of ESA’s continuing obligation to make 12-month finding prevents invoking the 6-year statute of limitations.  (The article has a link to the opinion.)

Court decision in Friends of the Inyo v. U. S. Forest Service (E.D. Cal.)

On March 9, the district court allowed an exploratory gold drilling operation on the Inyo National Forest to proceed.  The proposal would largely involve drilling deeper than prior exploration in the same area, but it is in an area which is habitat for the bi-state sage-grouse (currently proposed for listing under the ESA).  The court approved the use of two separate categorical exclusions related to short-term mining impacts and wildlife habitat improvement.

On March 9, the U. S. Fish and Wildlife Service completed its review to comply with a September 20, 2021 court-ordered remand of the Service’s previous “not warranted” finding for the Joshua tree. It found again that the species is not warranted for listing.

New lawsuit:  Wilderness Workshop v. Harrell (D. D.C.)

On March 13, Wilderness Workshop and Rocky Mountain Wild filed a lawsuit to overturn the White River National Forest’s Record of Decision for the Berlaimont Estates Road Improvement Project. Issued on Friday, March 10, this decision would facilitate a developer’s plan to build 19 new mansions on 680 acres surrounded by deer and elk winter range in the White River National Forest.  (The article includes a link to the complaint.)

New lawsuits:

Sovereign Inupiat for a Living Alaska v. Bureau of Land Management (D. Alaska)

Center for Biological Diversity v. Bureau of Land Management (D. Alaska)

On March 13, the Biden Administration approved the Willow oil drilling project on the Naval Petroleum Reserve in Alaska.  This followed a court reversal of a previous Trump Administration approval, and two new lawsuits were immediately filed by environmental and indigenous groups.  There are ESA claims involving federally threatened polar bears and other species, and alleged violations of NEPA, including effects of greenhouse gases, and limiting the range of alternatives considered because of a “mistaken conclusion” that the agency lacked the authority to deny or significantly curtail the ConocoPhillips project, including failure to consider eliminating “special areas.”  ANILCA and the Naval Petroleum Reserves Production Act are also implicated.  (The article includes links to both complaints.)

In another case, applicable in part to the Willow project, the Alaska district court held that federal law preempted state law, and therefore that ConocoPhillips could withhold well data from the public for the duration of the lease (rather than a shorter time period provided by state law).

 

There was some news in a couple of ongoing Forest Service project lawsuits:

Oral argument in Ohio Environmental Council v. U.S. Forest Service (S.D. Ohio)

The Sunny Oaks project on the Wayne National Forest involves clearcutting white oak trees (discussed previously here).  It also involved the interpretation of forest plan standards that require the agency to maintain 12 trees with loose bark per acre, like oaks and hickories, to provide habitat for endangered Indiana bats.  At the hearing, the Forest Service attorney apparently argued that, in the project area, there aren’t that many trees with loose bark, and he said the agency has the flexibility to not follow the standard.  (This reminds me of an argument that, because a project area didn’t meet an elk cover standard already, it was ok to remove more cover, which I don’t think was a winning argument.)

Plaintiffs’ brief filed in Los Padres Forest Watch v. U. S. Forest Service (C.D. Cal.)

This project on the Los Padres National Forest involves “removal of trees and native chaparral across 775 acres of a unique ridgeline that harbors rare plants and animals and is important to local Chumash tribes.”  It is “one of the most controversial decisions ever issued in Los Padres National Forest.”  In April, 2022, six environmental organizations, the City of Ojai and the County of Ventura, challenged the use of a categorical exclusion, as well as “failing to provide annual updates to Congress on how many times the agency has invoked the loophole.”  The brief (a link is provided in the article) also addresses violations of the Endangered Species Act (California condors) and the Roadless Area Conservation Rule.

 

Public Lands Litigation Update – through February 15, 2023

by

Now that we are no longer receiving the Forest Service’s updates, my goal is to provide a summary of relevant lawsuits twice a month.  (Did you know that “bi-monthy” can mean either twice a month or every other month?  That’s pretty useless.)  I’ll try to include a link to the court document in or via the header when I’ve got that.

My sources of information are pretty hit-or-miss, so some of them may be a little late.  Still, if it looks like I missed something you think should be included, let me know about it.  (There’s one of those included here – thanks!)

(Another) court decision in Friends of the Clearwater v. Probert (D. Idaho)

This court had (for the second time) previously granted summary judgment on Plaintiff’s challenge to a travel planning decision in 2017 allowing motorized use of the Fish Lake Trail trail in a Recommended Wilderness Area on the Clearwater National Forest, finding violations of elk habitat standards in the forest plan, and “minimization” requirements of the Travel Management Rule.  On December 1, the court vacated the exception in the travel plan for that particular trail, meaning that the trail would no longer be designated as open to motorized use, and therefore such use would be prohibited.  The court found “no reasonable justification” for the more than seven-year failure to comply with the first remand order in 2015, in particular with no end in sight for completing the revised forest plan.  It established a June 1, 2024 deadline for completing the remand and it required interim reporting to the court.

  • Oil and gas leasing delays

Intervention:  State of Wyoming v. U. S. Department of Interior (D. Wyo.).

In December, Wyoming and two industry trade groups challenged the Bureau of Land Management’s decision to not hold lease sales during parts of 2021 and 2022.  Plaintiffs claim the agency has an “unwritten policy” pausing leasing and want the court to order the Department of the Interior (DOI) and the BLM to hold lease sales every three months across the west.  On February 9, 17 conservation organizations were granted intervention (per the motion attached to this news release).  An earlier case in Wyoming held that the federal government has broad authority to postpone sales to address environmental concerns (see Western Energy Alliance v. Biden (D. Wyo.)).

Intervenor briefing in State of North Dakota v. U. S. Department of Interior (D. N.D.)

In January, North Dakota also sued the BLM for postponing oil and gas leases and not issuing them every three months, mimicking the Wyoming lawsuit and its own similar lawsuit in 2021.  This press release includes a link to a brief filed by conservation group intervenors on February 9.

Court decision:  Dine´ Citizens Against Ruining Our Environment v. Haaland (10th Cir.)

On February 1, the circuit court ruled on the adequacy of an “EA Addendum,” prepared after a previous loss in district court, and 81 individual Environmental Assessments.  The circuit court held that the BLM again violated NEPA by failing to account for the impacts – including health effects – of toxic air pollution from oil and gas drilling and fracking, and the impacts of added carbon pollution to the climate.  The court also ordered a halt to new drilling permits.  (The article linked above includes a link to the decision.)

The district court had upheld the decision, and this reversal by the 10th Circuit is the first time it has ruled in favor of citizen groups on these issues.  This article explains the reasoning:  

Arguably the most noteworthy element of the ruling was that the BLM could, and indeed should have compared the volume of greenhouse gasses emitted by permitted wells to the levels budgeted by the Intergovernmental Panel on Climate Change. 

On appeal, the BLM had claimed that “incremental contribution to global (greenhouse gasses) from a proposed land management action cannot be accurately translated into effects on climate change globally or in the area of any site-specific action.”

“(The BLM) is not free to omit the analysis of environmental effects entirely when an accepted methodology exists to quantify the impact of GHG emissions from the approved (Applications for Permits to Drill),” the court ruled.

The court did not see this preapproval as an unlawful predetermination, given the BLM’s willingness to revoke permits if the wells were found to violate the final environmental analysis.

Partial court decision in Center for Biological Diversity v. Haaland (D. Minn.)

On February 1, in the latest iteration of this case, the district court dismissed parts of a claim that the U. S. Fish and Wildlife Service and Army Corps of Engineers should have reinitiated consultation on the land exchange that removed the site from the Superior National Forest, and on a Clean Water Act permit.  It allowed the case to proceed with this claim, but limited it to determining if reinitiation was necessary to address the recent decline in the northern long-eared bat population, and alleged changes in the mine proposal.  (There are also additional claims remaining in this case.)

New lawsuit:  Wilderness Watch v. Halter (D. Minn.)

On February 3, Wilderness Watch sued the Forest Service for failing to implement a 2015 settlement agreement where it agreed to study and correct excessive motorized towboat use to shuttle canoes farther into the Superior National Forest wilderness.  (The article includes a link to the complaint.)

Court decision in Bartell Ranch v. McCullough (D. Nev.)

On February 6, the district court held that the BLM complied with NEPA for the Thacker Pass mine, and met its tribal consultation obligations, but violated FLPMA as it relates to the approximately 1300 acres of land that Lithium Nevada intends to bury under waste rock because BLM did not first make a mining rights validity determination as to those lands.  The court did not vacate the decision while BLM makes this determination.  (A link to the opinion is provided at the end of the article.)  We most recently discussed this case here.

On February 7, the Center for Biological Diversity filed a notice of intent to sue the Fish and Wildlife Service for unlawfully delaying final listing decisions for species it had proposed for listing:  Peñasco least chipmunks, Mt. Rainier white-tailed ptarmigans, South Llano Springs moss, bog buck moths, cactus ferruginous pygmy owls, tall western penstemons, four distinct populations of foothill yellow-legged frogs, and eight freshwater mussels. The notice also opposes the delay in finalizing critical habitat protection for Humboldt martens.   The marten was discussed here, and the yellow-legged frogs here.  More on the pyramid pigtoe is here.

The Penasco least chipmunk was proposed for listing as endangered in 2021 with proposed critical habitat.  The chipmunk is native to the Sacramento and White Mountains in south-central New Mexico in and around the Lincoln National Forest, but remains only in the White Mountains, with about half of the habitat in a wilderness area.  In its listing proposal, the Fish and Wildlife Service said it was especially threatened by recreational activities in the area, and livestock grazing is also implicated.

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

On February 8, the National Park Service was sued for failing to prepare an EIS or to consult with the Fish and Wildlife Service before removing land-use restrictions to allow construction of Miami Wilds waterpark, hotel, and retail development, where 17 threatened or endangered species may occur, including some critical habitat.  Miami-Dade County received these lands in the 1970s and 1980s from the U.S. Department of the Interior and NPS through conveyances that required the county to use and maintain the land for public park or public recreational purposes, along with other terms, covenants, and restrictions.  The NPS decision at issue, an agreement with Dade County, would transfer those restriction to lands outside of this project area.  (The article has a link to the complaint.)

The Minnesota Court of Appeals has ruled that construction of a new wood products plant requires preparation of an EIS and reconsideration of effects on two public wetlands.   The Leech Lake Band of Ojibwe challenged the decision by the Cohasset City Council because of perceived threats to wild rice in Blackwater Lake and two eagle nests, and an imperiled fern — called the goblin fern — in its Chippewa National Forest old-growth habitat.  (The Forest Service was apparently not a party to the lawsuit.)

We have previously discussed the use of southern forests to produce wood pellets for energy generation.  Last fall, a Georgia judge allowed a case to proceed with claims that the permit for the Spectrum Energy pellet mill in Adel, GA violated the Civil Rights Act because the Georgia Environmental Protection Division discriminated against minority residents of a small town by approving an air pollution permit for manufacturing wood pellets.

The BLM is offering a $2,000 reward for information leading to a conviction of anyone responsible for graffiti vandalizing the Moccasin Mountain Dinosaur Tracksite located southwest of Kanab.

 

Frivolous lawsuits

by

For those inclined to use the phrase “frivolous lawsuits” to characterize bothersome legal complaints filed by environmental groups, here is a rebuttal.  But first, here is a legal definition of “frivolous.”

A frivolous claim, often called a bad faith claim, refers to a lawsuit, motion or appeal that is intended to harass, delay or embarrass the opposition.

A claim is frivolous when the claim lacks any arguable basis either in law or in fact (citation omitted). That means, in a frivolous claim, either: “(1) “the ‘factual contentions are clearly baseless,’ such as when allegations are the product of delusion or fantasy;” or (2) “the claim is ‘based on an indisputably meritless legal theory.'”

Here is what a Montana columnist (with an environmental background) had to say:

“Most people, and certainly most politicians, know it’s neither cheap nor easy to file a lawsuit — especially if the defendant happens to be the federal, state or local government. You better have your ducks in a row when you go before a judge because there’s no guaranteed outcome. The arguments of plaintiffs and defendants stand on their merits and legal precedent. When environmentalists or conservationists win their suits — and they do so quite often — it’s because the facts and the law prevail.
Of course it’s handy to label those lawsuits “frivolous” because they often overturn the projects or policies forwarded by agencies and politicians that place commerce and development as the highest and best use for every public resource.

However, as reported by the Washington Post, Donald J. Trump has now provided a perfect opportunity for those same politicians to see what actually happens when a frivolous lawsuit is filed. A Florida federal judge just sanctioned Trump and his lawyer, Alina Habba, for their frivolous lawsuit against Hillary Clinton over the 2016 campaign — and slapped them with a whopping $937,989.39 fine.

Judge Donald M. Middlebrooks didn’t mince his words in his 46-page judgment, calling Trump a “prolific and sophisticated litigant” who “is repeatedly using the courts to seek revenge on political adversaries.” But he didn’t stop there, writing: “He is the mastermind of strategic abuse of the judicial process, and he cannot be seen as a litigant blindly following the advice of a lawyer. He knew full well the impact of his actions. As such, I find that sanctions should be imposed upon Mr. Trump and his lead counsel, Ms. Habba.”
As Middlebrook added: “Here, we are confronted with a lawsuit that should never have been filed, which was completely frivolous, both factually and legally, and which was brought in bad faith for an improper purpose.”
Never has any Montana judge thrown out an environmental lawsuit, sanctioned, nor fined an environmental plaintiff or their attorneys for filing a frivolous suit — let alone dressing them down in such an unambiguous ruling.”

Public Lands Litigation News – through January 2023

by

 

New lawsuit

In December, conservation groups sued the Forest Service to block a long-disputed land swap on Mount Hood, claiming the Forest Service is giving the owner of Mt. Hood Meadows and Cooper Spur ski areas a sweetheart deal on buildable land in Government Camp without protecting the north side of the mountain from further development.

Court decision

In early January, the Idaho district court vacated, at the agency’s request, a BLM decision to allow 16,000 sheep to graze on a 270,000 acre allotment in southeastern Idaho, after the judge blocked the Twin Buttes Allotment decision.  A Freedom of Information Act request had revealed recent research that identified the area as an important sage-grouse migration corridor, which had not been disclosed by the BLM.  Western Watersheds’ news release is here.

New lawsuit

On January 18, three conservation groups sued U. S. D. A. Wildlife Services and the U. S. Fish and Wildlife Service over Wildlife Services’ predator control program in Montana, arguing that its activities could threaten the long-term recovery of grizzly bears, which are protected under the Endangered Species Act.  The lawsuit challenges a 2021 decision to continue the program and its associated consultation with the FWS, along with a 2020 Trump Administration policy.  The complaint focuses on an alleged failure to consider the effects on connectivity between grizzly bear populations of its bear removal actions.

Court decision in Center for Biological Diversity v. Haaland (9th Cir.)

On January 19, the circuit court held that plaintiffs cannot sue the U.S. Interior Department for refusing to amend the 1993 Grizzly Bear Recovery Plan because the recovery plan itself was not a “final agency action” subject to judicial review under the Administrative Procedure Act.  The article includes a link to the opinion, or here it is.

New lawsuit:  Citizens Caring for the Future v. Haaland (D. N.M.)

On January 23, four plaintiff organizations challenged 32 oil and gas leases covering nearly 6,000 acres of land in New Mexico administered by the BLM’s Carlsbad Field Office.  It targets “the Biden administration’s decision to uphold the Trump-era leases,” and “the administration’s failure to address the harm from expanded oil and gas extraction to the climate and regional air quality.”  The news release includes a link to the complaint.

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

On January 24, the district court held that BLM approvals for a 1600-acre open pit phosphate mine in southeastern Idaho failed to adequately analyze how the project might damage sage-grouse habitat and the extent of groundwater pollution with heavy metals.  The Caldwell Canyon mine would replace another depleted mine to provide ore that would be processed into the herbicide glyphosate, a key ingredient in Bayer’s Roundup weedkiller, which is itself the subject of extensive litigation.  The news release includes a link to the opinion.

New lawsuit:  Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Ind.)

On January 25, the county and three environmental plaintiffs filed a second lawsuit against the Houston South Vegetation Management and Restoration Project challenging the agency’s failure to comply with the court’s order in a prior lawsuit to evaluate the effects of logging and burning on Lake Monroe’s drinking water.  The article includes a link to the complaint. That first lawsuit is now being considered in the 7th Circuit Court of Appeals, where both the plaintiffs and defendants appealed the original court decision.

Criminal conviction

A Montana resident pleaded guilty to mail fraud, and faces a maximum of 20 years in prison, a $250,000 fine and three years of supervised release for fraudulently certifying he was grazing his own cattle on a BLM grazing allotment.  Grazing cattle owned by a third party requires payment of higher grazing fees, and he had submitted a false document showing ownership.

New lawsuit

The South Dakota Office of School and Public Lands is suing the Elm Springs Township Board of Supervisors for vacating ownership of section lines so that the public cannot use them to reach public lands, especially for hunting.  In South Dakota, section lines are considered to be a public right-of-way for access to other parcels of land, but abuse of that system is apparently not uncommon, including a case involving the Black Hills National Forest.  (We discussed a Wyoming lawsuit on “corner crossings” here.)

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

On January 26, plaintiffs sued over the 2019 decision by the U. S. Fish and Wildlife to not list the southern hognose snake under the Endangered Species Act.  The species’ historic habitat includes fire-dependent forested habitat across the south, and the primary stressors affecting the species’ biological status are habitat loss due to fire suppression, timber harvesting, sea level rise, conversion of land to agriculture, and urbanization.  The allegations include failure to properly model timber harvest.  The article includes a link to the complaint.

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

On January 30, the Center for Biological Diversity, Western Watersheds Project and a professor at Montana Tech who authored the popular book “Montana’s Last Best River: The Big Hole and Its People” sued the U. S. Fish and Wildlife Service for failing to list the arctic grayling.  The remaining fish are found primarily in the Big Hole River, which is in a valley surrounded by the Beaverhead-Deerlodge National Forest.  They are threatened primarily by irrigation withdrawals for growing hay.  The FWS has deferred to a conservation agreement implemented by the state which has, to date, not restored summer flows sufficiently to sustain grayling.  The news release includes a link to the complaint.

 

The new year also found the Biden Administration making some important policy decisions related to past litigation.

On January 18, the Army Corps of Engineers and the U.S. Environmental Protection Agency published their final rule on “Waters of the United States” (WOTUS) in the Federal Register.  The new rule, which will become effective 60 days after publication in the Federal Register, attempts to clarify which bodies of water, wetlands and waterways are protected under the federal Clean Water Act.  The Biden administration rule will protect more wetlands and streams than the previous regulation issued under President Trump. However, the Biden administration rule is less expansive than the Obama administration’s WOTUS rule, which included isolated wetlands.  Recent litigation was discussed here.  This article discusses the case currently before the Supreme Court.

On January 25, the Secretary of Agriculture announced that the Forest Service would reinstate a rule to again prohibit road-building and timber harvest in unroaded areas of the Tongass National Forest.  Lawsuits followed the last time the rule was imposed, and in 2020 after it was removed by the Trump Administration (discussed here).  The USDA press release cited a directive from President Biden at the start of his term to review and address rules enacted under Trump that might conflict with environmental and climate aims laid out by Biden.

On January 26, the Interior Department issued a 20-year mining moratorium for over 225,000 acres of the Superior National Forest upstream from the Boundary Waters Canoe Area Wilderness in northeastern Minnesota.  This includes an area that had been eyed for a potential copper and nickel mine by Twin Metals Minnesota, and has been the subject of litigation.  This withdrawal decision came after the Bureau of Land Management and the Forest Service evaluated the environmental impacts of mineral development in the region.

 

The U. S. Fish and Wildlife Service has also made a couple of decisions for species found on national forests.

On October 18, 2022, the U. S. Fish and Wildlife Service proposed listing two salamander species found on the Sequoia National Forest under the Endangered Species Act and proposed designating critical habitat on national forest lands.  The Service determined that the main threats impacting the Kern Canyon slender salamander include those posed by increasing grazing, recreation, fire, and climate change, and warrant listing the species as threatened, while the relictual slender salamander faces threats primarily caused by roads, grazing, fire, timber harvest, and hazard tree removal, and it would be listed as endangered. The Kern Plateau salamander (also found on the Inyo National Forest) was not proposed for listing.  National forest plans were cited for protecting all three species.  (The comment period closed in December.)

On January 30, the U.S. Fish and Wildlife Service protected the Sacramento Mountains checkerspot butterfly as an endangered species.  The butterfly is found only in high-elevation meadows on the Lincoln National Forest in southern New Mexico.  Only two small populations of the butterfly remain because most of its habitat has been degraded by grazing, development and motorized recreation.

 

Public Lands Litigation – update through January 13, 2023

by

Out with the old, and in with the new.

Court decision in Glenwood Springs Citizens’ Alliance v. U. S. Department of the Interior (D. Colo.)

On November 8, the district court denied a motion to dismiss the case by the Federal Defendants, allowing it to proceed with a claim that the BLM unreasonably delayed taking action to address unauthorized removal of limestone, in violation of a 1982 plan of operations, for a quarry on federal lands.  The opinion is here.

New lawsuit

On November 23, plaintiffs filed a lawsuit against the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The complaint alleges failure to give adequate notice for public participation after changes were made following the 2021 Cedar Creek Fire.  Among other issues, the complaint challenges the use of “condition-based management, which “makes it impossible for the public to adequately determine what trees will be cut, where, or in what amounts.”  The lawsuit also states that there is scientific controversy over the use of thinning to manage wildfire risk, and that the Forest Service has been using the North Central Washington Forest Health Collaborative as an advisory committee in violation of the Federal Advisory Committee Act.

New lawsuit

Los Padres ForestWatch filed a lawsuit against the Los Padres National Forest for not releasing public records about the Ecological Restoration Project—a fire mitigation proposal that will impact roughly 235,495 acres of land – in a timely manner.  They submitted a Freedom of Information Act request during the 30-day comment period in July.  After a second request in November, they received a response confirming there are 3,726 pages of documents, but did not provide them.  Normally compliance with FOIA requests must occur within 20 days, but plaintiffs allege that this lack of responsiveness is typical.

Settlement

The November 19 update discussed actions by the State of Arizona to place shipping containers on federal land along the border with Mexico and to sue the United States.  On December 14, the Center for Biological Diversity filed a Notice of Intent to Sue the state for violating the Clean Water Act, and the U. S. Justice Department filed a complaint in USA v. Ducey (D. Ariz.) accusing the state of trespassing on federal land. On December 20, the State of Arizona filed documents in court agreeing to cease installing the containers in the Coronado National Forest, and to remove the containers already installed, in consultation with the Forest Service, to settle the case.

Notice of intent to sue

On December 16, WildEarth Guardians filed a notice of intent to sue the Forest Service and Fish and Wildlife Service regarding the effects of over-snow vehicle use on the Sierra Nevada red fox on the Stanislaus and Humboldt-Toiyabe National Forests.  The species was listed as endangered in 2021, after OSV designations were made by these forests, and ESA consultation on the red fox has not occurred.  The press release includes a link to the notice.

Court decision in Wild Virginia v. Council on Environmental Quality (4th Cir.)

This is the challenge to the Trump Administration’s 2020 changes in the regulations governing how federal agencies conduct reviews under the National Environmental Policy Act.  On December 22, the circuit court affirmed the district court decision that the district court did not have jurisdiction to decide this case.  The Biden Administration has since adopted the 2022 version of the CEQ regulations, which mooted plaintiffs’ case regarding some issues by returning to pre-2020 requirements for direct, indirect, and cumulative effects, and reasonable alternatives.  Remaining issues may be addressed by additional pending changes by CEQ.  The court rejected jurisdiction primarily because those issues are not ripe for review or plaintiffs lack standing since harm depends on future actions by other parties.  This case was discussed earlier here.

Settlement and withdrawal in Wildlands Defense v. Brummett (D. Idaho)

On December 30, the Boise National Forest withdrew the Sage Hen Integrated Project, which covered 67,800 acres of land over a 20-year period, and explicitly used a “’condition based management’ scheme left over from the Trump administration that has been rejected by courts.”  There were also endangered species issues.  The withdrawal was required by a settlement of the litigation on October 19.  That litigation was discussed here, where we speculated about the outcome (and now we can speculate about the Forest Service’s reasons for withdrawing it).  The article includes a link to the withdrawal letter.

Withdrawal

On December 29, the Pacific Northwest Regional Forester withdrew the Flat Country Project on the Willamette National Forest.  This was not the result of a lawsuit, but rather of the Biden Administration’s directive to conserve old and mature forest.  The Forest Service indicated that the parts of the project most groups agree on will move forward, while other parts, such as the logging of the older trees, could be dropped.

Court decision in Rocky Mountain Wild v. U. S. Forest Service (10th Cir.)

On December 30, the circuit court upheld the district court’s finding that the Forest Service conducted a reasonable search for records associated with the Village of Wolf Creek Access Project on the Rio Grande National Forest.  The request was filed in 2018 and yielded over 140,000 pages in 14,740 documents, and plaintiffs had challenged the file-searching process. The court allowed the Forest Service to choose the search terms it used.  It also allowed the Forest Service to “claw back” two documents it released by mistake.  The article has a link to the court opinion.  The plaintiffs had recently won their lawsuit against the Forest Service on the merits, as discussed here.

New lawsuit:  Alliance for the Wild Rockies v. Kaiser (D. Mont.)

On January 6, Alliance for the Wild Rockies and Native Ecosystems Council filed suit against the Black Ram Project on the Kootenai National Forest.  Plaintiffs argue that the project will destroy grizzly bear habitat for the declining Cabinet-Yaak population with logging, prescribed burning and road building, in violation of the Endangered Species Act.  The project includes 579 acres of “intermediate harvest” in designated old growth forest.  The complaint includes a claim that the project fails to demonstrate it would comply with a forest plan standard for road density.  The article includes this link to the complaint. Plaintiffs provide their views here.

Notice of intent to sue

On January 9, the Center for Biological Diversity filed a notice of intent to sue the Bureau of Land Management over cattle observed grazing in the recently designated critical habitat for this newly listed endangered species in Nevada.  The article includes a link to the notice.

The same area is the site of a possible lithium mine (we have discussed prior litigation here), and the BLM cited the mining company for trespassing on the critical habitat five days after the U.S. Department of Energy announced a $700 million conditional loan to the mining company.  The DOE said the loan was contingent on, among other things, the completion of an environmental impact statement.

New lawsuit

On January 9, the San Francisco-based Burning Man Project and four co-plaintiffs (Friends of Nevada Wilderness, Friends of Black Rock/High Rock Inc. and two local residents) filed a lawsuit in federal court in Reno accusing the Bureau of Land Management of violating NEPA in approving Ormat Nevada Inc.’s exploratory drilling within the Black Rock National Conservation Area, home to the annual Burning Man Festival.  The lawsuit said Ormat has attempted to evade analysis of the geothermal power plants’ potential negative effects on the environment by segmenting the project, which limits BLM’s review to only the exploration stage of its plans.  The proposed wells would be adjacent to a number of unique hot springs that are ecologically important and are relied upon by the local community for tourism.

 

Public lands litigation news through mid-December, 2022

by

 

Court decision in Oregon Natural Desert Association v. Bushue (D. Or.)

On December 7, the district court held that the BLM is required by its resource management plan to close 13 research natural areas (RNAs) to grazing in southeastern Oregon.  That requirement was included as a decision in a 2015 plan amendment adopted range-wide to protect habitat for sage-grouse (ARMPA).  (That was the basis for the Fish and Wildlife Service deciding to not list the sage-grouse under ESA, and the 2015 amendment remains in place after a subsequent amendment in 2019 was enjoined.)

FLPMA requires that lands be managed in accordance with land use plans, and this amendment stated (twice) that specific areas in these RNAs “will be unavailable to livestock grazing.”  However, the Record of Decision also made it clear that, “implementing on-the-ground activities requires additional steps before any of them can begin.”  The court first found that language in the draft plan that imposed a 5-year deadline and prescribed fencing was not included in the final decision, despite language in the ROD that could be interpreted otherwise, and therefore these were not actual plan requirements.

The court then determined that nine years or more of delay in meeting FLPMA’s requirement by terminating existing grazing authorizations was unreasonable under the APA.  To do so, it first found that these specifically identified actions were “discrete” (as opposed to “programmatic attacks”), making them enforceable by a court.  One reason the BLM had argued that they were not “discrete” was because actions requiring NEPA compliance could not be compelled.  The court disagreed, saying, “If courts were barred from enforcing any discrete, mandatory action that required some further NEPA analysis, many environmental statutes, regulations, and provisions would be unenforceable.”  In this case, the court also found that the BLM had completed a separate NEPA process for closing these areas to grazing and had included that with its plan amendment.

The court then held that the closures to grazing were “legally required” by the resource management plan.  It cited the Supreme Court (Southern Utah Wilderness Alliance, SUWA, case) for acknowledging the possibility that language in a land use plan could create a binding commitment for an agency to act.  This court concluded that the sage-grouse amendment contains “a specific, unequivocal command” placed on the agency to make the RNAs unavailable to grazing.  Moreover, “The plain language of the ROD makes clear that the ‘land use allocation[s]’ in Management Decision LG 1 and Objectives LG 2, the provisions making areas unavailable for grazing, were immediate decisions…  In other words, it is not “[a] statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities;” (i)t is an immediate, binding commitment to set aside 22,765 acres as unavailable to grazing.”

The court found that, “BLM has violated FLMPA and the APA by failing timely to close the 13 key RNAs. BLM must make unavailable to grazing the portions of the key RNAs specified in the 2015 ARMPA without further delay.”  It ordered further briefing on a specific remedy.

ESA listing action resulting from Center for Biological Diversity v. Everson (D. D.C.)

On November 30, the U. S. Fish and Wildlife Service announced it will reclassify the northern long-eared bat from threatened to endangered, the result of a lawsuit decided in 2020.  The Service cited the impacts of white nose syndrome (WNS) on the species’ viability.  This tightens restrictions on incidental take of individuals – activities NOT likely to result in a violation of the ESA section 9 prohibition on “take” include “minimal tree removal and vegetation management any time of the year outside of forested habitat and more than five miles from known or potential hibernacula, insignificant forested habitat removal during the hibernation period not negatively affecting an essential behavioral pattern, tree removal at any time of year in highly developed urban areas…”  In other words, most logging would now require the FWS to authorize incidental take.  This article includes a map of WNS distribution, and a link to the earlier court decision.

Settlement in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Mont.)

On November 30, the district court approved a settlement that requires the Service to respond to Plaintiff’s June 8, 2022 rulemaking petition, requesting a phase-out of lead usage on the entire National Wildlife Refuge System, by June 1, 2023.  The original lawsuit had challenged a Trump Administration rule for failing to comply with the Endangered Species Act when it expanded hunting and fishing at national wildlife refuges and fish hatcheries.  Because of the lawsuit, the Service has also committed to a proposed phaseout of lead use on numerous national wildlife refuges in the eastern U.S.  The press release includes links to the lawsuit complaint and the settlement agreement.

Court decision in Los Padres ForestWatch v. U. Forest Service (C.D. Cal.)

On December 5, the district resolved the remaining issue in litigation of the Tecuya Ridge Project on the Los Padres National Forest.  The court found that additional analysis by the Forest supported a conclusion that the proposed shaded fuelbreaks would comply with the Roadless Area Conservation Rule requirement that the project remove “generally small diameter timber.”

The earlier decision by the Ninth Circuit in this case was discussed here.

Court decision in Native Ecosystems Council v. Marten (D. Mont.)

On December 6, the district court granted the Forest Service motion to dissolve an injunction against the Fleecer Mountains Project on the Beaverhead-Deerlodge National Forest.  The agency had complied with its requirement to consult on the forest plan with regard to new information that included parts of the Forest as Canada lynx habitat.

A federal judge has convicted and fined an individual for driving a motorized vehicle off of designated routes on the Tahoe National Forest.  He was found by Forest Service law enforcement officers in a riparian area that provides important habitat for the Foothill yellow-legged frog, a species proposed for federal listing in 2022.  The Forest had ramped up patrols of this area that had historically received heavy motorized use.

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

On December 6, plaintiffs sued the BLM to protect federally endangered Amargosa voles from unmanaged recreational use within their federally protected critical habitat near a popular hot spring in the Mojave Desert.  They say, “federal officials are looking the other way while people party around the clock …,” and allege that unauthorized off-road vehicles, unattended campfires, off-leash dogs, unauthorized camping, litter, and a lack of bathroom facilities have led to severe degradation of the animals’ habitat.

This isn’t a lawsuit yet, but the “demand letter” sounds like it could be the equivalent of a notice of intent to sue (which is not a formal requirement in this case), and what can be done in “de facto” wilderness has been a topic of discussion here.  The Beaverhead-Deerlodge National Forest moved an electronic site structure into a statutory Montana Wilderness Study Area using motorized equipment under a categorical exclusion for “maintenance” and with no public process.  Montana Backcountry Horsemen has asked that it be removed.

As someone noted in a comment on the last litigation summary, on December 14, the whitebark pine was listed as a threatened species under the Endangered Species Act.  White pine blister rust is the primary threat to the species, along with “mountain pine beetles, altered wildfire patterns, and climate change.”  The news release from the Whitebark Pine Ecosystem Foundation links to the Fish and Wildlife Service information.

On December 16, the U. S. Fish and Wildlife Service published a final rule listing the Tiehm’s buckwheat as an endangered species, and designated 910 acres of critical habitat on lands managed by the Bureau of Land Management.  The Center for Biological Diversity had sent the FWS a Notice of Intent to Sue in October for failing to list the species.  The habitat involved is also the site of a proposed lithium mine, which we have discussed in conjunction with that litigation, most recently here.  CBD said, “Lithium is an important part of our renewable energy transition, but it can’t come at the cost of extinction.”  According to the mining company, “Our operations have and will continue to avoid all Tiehm’s buckwheat populations.”  The article includes a link to the listing notice.

 

Public Land Litigation News through November 2022

by

Some old news to start the new year.

Settlement in Cascadia Wildlands v. U. S. Bureau of Land Management (D. Or.)

On October 3, the BLM agreed to reverse the expansion of a categorical exclusion made by the Trump Administration.  The Trump rule increased the maximum area for categorical exclusions permitting logging of “dead or dying trees” from 250 acres to 3,000 acres. The rule also doubled the maximum amount of permitted road construction from one-half to one mile of permanent road. The previous categorical exclusion rule had required those roads to be temporary. The BLM will now engage in rulemaking to remove the categorical exclusion language from its NEPA implementing procedures and revert to the old guidance. On August 3, the BLM had alread limited the CE to 250 acres again.  The settlement allowed a specific BLM project that had used the new CE to proceed. The news release includes a link to the agreement.

New lawsuit:  Dine´ Citizens Against Ruining our Environment v. U. S. Bureau of Land Management (D. N.M.)

On October 26, plaintiffs challenged authorization and issuance of oil and gas leases on 42 parcels, covering nearly 45,000 acres of land administered by the BLM’s Rio Puerco and Farmington field offices in the Greater Chaco area, and BLM’s approval of approximately 120 Applications for Permit to Drill on 8 of these lease parcels. Plaintiffs fault the agency’s failure to adequately analyze the effects this fracking will have on the climate, public health, environmental justice, and cultural resources. There is also a claim of failure to prevent unnecessary or undue degradation of public lands under FLPMA.  It comes amid current government efforts to “honor” Chaco.  The news release includes a link to the complaint

Notice of Intent to Sue

On November 9, The Center for Biological Diversity and Maricopa Audubon Society notified the Forest Service and Fish and Wildlife Service of an intent to sue for failure to control cows grazing in endangered species critical habitat, primarily along the Salt River and its tributaries.  The groups allege the Forest Service is violating the ESA by failing to ensure that ongoing livestock grazing is not likely to jeopardize the yellow-billed cuckoos, southwestern willow flycatchers, Chiricahua leopard frogs, northern Mexican garter snakes, narrow-headed garter snakes, spikedace, razorback suckers or Gila chub and their habitat. The notice follows the Center’s 2020 report and lawsuit and resulting 2021 legal agreement protecting the Verde River from cattle grazing, and recent findings continue to show widespread, severe cow grazing damage in riparian areas.  The news release includes a map and a link to the notice.

  • Tonto copper mine

On November 15, the Arizona Court of Appeals ruled that the state Department of Environmental Quality illegally issued a Clean Water Act permit for the proposed Resolution Copper Mine, which is being opposed by the San Carlos Apache Tribe.  The decision overturns a Maricopa County Superior Court ruling and orders ADEQ to restart the permit process.  The opinion in San Carlos Apache Tribe v. State of Arizona is included here.

On November 17, the 9th U.S. Circuit Court of Appeals agreed to rehear a federal case in front of a full panel of 11 judges. The 3-judge panel had previously ruled that the federal government was not in violation of the Religious Freedom Restoration Act, and could give land in the Tonto National Forest to the mining company.  A link to the district court order under review in Apache Stronghold v. United States may be found here.  The earlier 9th Circuit decision was discussed and linked here.

On November 23, Standing Trees, a Montpelier-based anti-logging group, filed a lawsuit in Vermont Superior Court against logging of mature forest in Camel’s Hump State Forest.  The group has called for a moratorium on logging in state parks and forests and in the federal Green Mountain National Forest, and has protested the Telephone Gap Integrated Resource Project there (which may be the next lawsuit).  The group argues that the Forest Service logging plans violate the spirit, if not the letter, of President Joe Biden’s executive order earlier this year requiring the service to categorize and monitor old-growth trees on federal lands and to implement “climate-smart management and conservation strategies.”

Court decision in Klamath-Siskiyou Wildlands Center v. Bureau of Land Management (9th Cir.)

On November 25, the 9th Circuit upheld the North Landscape Project against NEPA and ESA claims, as discussed here.

Injunction pending appeal in Blue Mountains Biodiversity Project v. Jeffries (9th Cir.)

On November 18, the circuit court agreed to preserve the injunction until it hears the case against logging around the recreation area on the Ochoco National Forest to manage root rot.  (The article includes a picture.)  The district court opinion was summarized here:

A Supreme Court decision has threatened the immediate future of the native timber industry in Victoria, according to logging proponents. The court ordered stricter rules for VicForests operations, after it found the government-owned agency broke the law by failing to adequately protect the yellow-bellied glider and the endangered greater glider in Victoria.  The court ordered VicForests to undertake more rigorous surveying for gliders in logging coupes, create wider protected areas where gliders were located, and maintain at least 60 per cent of basal area eucalypts in harvested areas where gilders were identified.  (This is from Australia, but does it sound familiar?)

 

There were a number of developments related to the Endangered Species Act that may affect public land management.

Court decision in Center for Biological Diversity v. Holland (N.D. Cal.)

On November 16, the district court granted the requests by the U.S. Fish and Wildlife Service and National Marine Fisheries Service to send the 2019 Trump Administration changes to ESA regulations back to them for further reconsideration. The 2019 rule changed procedures for listing, interagency consultation, and incidental take.  The judge left the changes to the ESA intact, saying he couldn’t vacate them without having first ruled on the merits of the environmentalists’ claims.  There is no deadline for this reconsideration.  The article contains a link to the ruling.

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

On November 29, the Center sued the U. S. Fish and Wildlife Service for failing to complete a national wolf recovery plan.  The existing plan has separate treatments for the eastern timber wolf in Minnesota, the delisted gray wolf population in the northern Rocky Mountains and the Mexican gray wolf in the Southwest, and the agency has attempted to delist the species in other areas.  The lawsuit also challenges the failure to prepare a required 5-year status review.  The article includes a link to the complaint.

  • Potential ESA Listing lawsuits

The Center for Biological Diversity has also been busy prodding the Fish and Wildlife Service to make listing decisions for several species.

On November 14, they filed a Notice of Intent to Sue for deciding to not list the southern hognose snake.  The species lives in longleaf pine savanna, a forested fire-dependent ecosystem that once covered an estimated 92 million acres in the Atlantic and Gulf Coast regions. Because of forest clearing and fire suppression, longleaf pine forests now cover less than 3 million acres.

On November 15, they filed a Notice of Intent to Sue for improperly delaying protection of the least chub, a species found in spring habitats in Utah’s Bonneville Basin.  The main threat to the species is groundwater pumping, but much of the habitat is found on BLM lands where oil and gas development is a threat to some populations.  The fish have also been introduced at protected sites on BLM lands.  There is more information about an immediate water pipeline threat here.

On November 15, the Center also filed a Notice of Intent to Sue for improperly delaying protection of the Fish Lake Valley tui chub in Nevada.  The FWS had found substantial evidence that listing the fish may be warranted, but the agency failed to issue a decision on whether protection is warranted by the legally required deadline.  The Center alleges that the state of Nevada, which has the authority to manage groundwater, failed to correct severe overpumping as groundwater levels continue to fall across the valley.  The chub is a BLM sensitive species, and additional threats include geothermal leases on BLM lands and numerous proposed lithium mines on a nearby playa.

  • Other ESA news

On November 7,  the U.S. Fish and Wildlife Service has revised its proposal to designate critical habitat for the Southern Sierra Nevada distinct population segment of fisher. The critical habitat designation would include approximately 595,495 acres and span six units in California’s Tuolumne, Mariposa, Madera, Fresno, and Tulare Counties. The majority of the land comprising these units is owned and/or managed by federal, state, or tribal governments.

On November 30, the Dixie Valley toad was given permanent protection as an endangered species under ESA (replacing an emergency designation).  Its only habitat is threatened by a geothermal energy project approved by the BLM, which is currently in court (last discussed here).  The final rule is here.

And finally, an election on November 8 for the Deschutes Basin North Unit Irrigation District in Oregon was viewed as a referendum of sorts on a habitat conservation plan that allows incidental take of bull trout and Oregon spotted frogs, both listed under the Endangered Species Act.  Two candidates for board members were outspoken against the HCP, and they were both defeated by a vote of those who use the water managed by the District.

Is Permitting Reform Paternalistic? And- Let’s Discuss: Manchin’s Permitting Reform Bill Specifically

by

This proposed bill language of the current bill would affect the FS and BLM with regard to certain projects (not of the veg management persuasion). The link takes you to the full bill, the the section by section, and a summary of the changes.

**************

Sidenote: The permitting reform discourse, as opposed to the permitting reform bill.  As Marcela Mulholland of Data for Progress pointed out at the Breakthrough Institute conference that I posted about here,  the (at least “progressive”) discourse around permitting reform is not very productive.  It’s like the concept itself is wrong (everything is currently perfect), which seems kind of irrational.  What human, let alone government, activity, can’t be improved?   Why is the concept, as opposed to the reality, such a flashpoint? A person, apparently on the New York State Climate Action Council, and I had a discussion on Twitter that reflects this.. I actually thought it was kind of funny.

*****************************************

Oh, and I thought this op-ed on the Hill by Catherine Wolfram “Progressives should have supported Manchin’s permitting reforms: Here’s why” had some good points.

Indeed, the arguments that the progressives make against carbon pricing are exactly why they should have supported Manchin’s permitting reforms. Blocking fossil fuel projects makes it more costly to deliver energy with existing fossil fuels. In effect, it creates a kind of carbon price, just one that’s haphazardly applied, usually extremely high, and where the revenues accrue to fossil fuel producers instead of the government. At the end of the day, low-income households’ energy bills go up.

*****************************************

But let’s move on to what’s specifically in the bill.

Projects are defined as “those projects for the construction of infrastructure to develop, produce, generate, store, transport, or distribute energy; to capture, remove, transport, or store carbon dioxide; or to mine, extract, beneficiate, or
process minerals which also require the preparation of an environmental document under the NEPA and an agency authorization, such as a permit, license or other approval.

It seems to me as if it’s mostly speeding up things (documents and disagreements and litigation) that can otherwise languish (and don’t we know it…). That’s what it says in the summary.

WHAT THE BILL DOES: Accelerate, not bypass. The bill will accelerate permitting of all types of American energy and mineral infrastructure needed to achieve energy security and climate objectives, without bypassing environmental laws or community input.

Here was the one I thought will be interesting to observe (if this passes):

Sec. xx15. Litigation Transparency
Topline Summary:
• Requires public reporting and a public comment opportunity on consent decrees and settlement agreements seeking to compel agency action affecting energy and natural resources projects.

Detailed Summary:
• Subsection (a) defines civil actions, consent decrees, and settlement agreements covered under this section.
• Subsection (b) requires that agencies publish online the notice of intent to sue and the complaint in a covered civil action not later than 15 days after receiving service. The subsection also requires agencies seeking to enter into a covered consent decree or settlement to publish online the proposed consent decree or settlement and provide an opportunity for public comment not later than 30 days before filing the consent decree or settlement with a court.
• Subsection (c) requires an agency to consider public comments received on a proposed consent decree or settlement agreement under subsection (b) and authorizes agencies to withdraw or withhold consent if the comments disclose facts or considerations that indicate that the agency’s consent is inappropriate, improper, inadequate, or inconsistent with any provision of law.

What do you all think about this, and about other parts of the bill?

Brian Potter’s “How NEPA Works”: A View of NEPA From a Very Studious Newbie

by

It’s kind of fun to read when new folks try to describe NEPA world. I really like how Noah Smith rounded up different folks’ thoughts. 

To my mind, Smith did some pretty amazing round up and interpretation work. For this discussion, though, I’d like to start on the first article, by Brian Potter on Substack called “How NEPA Works.” Brian Potter seems to be a policy wonk type at a think tank who has taken an interest in this topic.

So many interesting things about this article. Lots of references to the work of NEPA for the 21st Century and various Mortimer and Stern papers including their “exploring across agencies” paper from 2009.

The paper has lots of comparisons across agencies. Some unfortunately do not separate the FS out from USDA (nor BLM from DOI) so we can’t really compare them.

So many possible discussion topics, but this one could be particularly of interest- it’s a section called NEPA, the Courts and Uncertainty, and I think Potter does a better job than I ever have of explaining why NEPA litigation can be seen as a problem to those working on analyses.

An example of this is the threat of lawsuits incentivizing the inclusion of more and more research in environmental analyses, regardless of its merits:

An excellent illustration of excessive analysis due to management uncertainty is the Beschta Report. Commissioned by the Pacific Rivers Council in 1995, eight scientists drafted a paper, “Wildfire and Salvage Logging,” commonly known as the Beschta Report.

The paper has never been published in any scientific or professional journal, nor has it ever been subject to any formal peer review. In 1995, Forest Service scientists and managers expressed strong reservations about the report, which contains many unsubstantiated statements and assumptions. Nevertheless, the courts have sometimes shown support.

Groups have challenged postfire recovery projects on the grounds that the Forest Service has failed to consider the Beschta Report. In four cases, the courts have ruled that Forest Service decisions violated NEPA because the associated records did not adequately document the agency’s consideration of the Beschta Report. In two other cases, courts have ruled in favor of the Forest Service on this issue.

In view of the court record, forest planners might feel compelled to thoroughly document their consideration of the Beschta Report’s principles and recommendations, even though the underlying land management issues are already addressed in the record. That includes documenting why some elements of the Beschta Report are not relevant to the specific proposed project.

The court record has inspired some groups to demand that the Forest Service consider other papers and articles supposedly relevant to proposed actions. Sometimes the proffered list of references exceeds 100 entries. To minimize the risk of adverse judicial opinions, land managers might feel constrained to fully document within the body of the NEPA document their detailed consideration of each and every paper or article.

Potter considers that even changing NEPA regulations can increase risk and uncertainty.

This mechanism seems to be behind the length of NEPA documents. The 1978 CEQ regulations state that an EA should generally be less than 75 pages, and an EIS should generally be less than 150 pages. But the uncertainty of what’s needed to comply with NEPA, and the natural risk aversion of government agencies, pushes these documents to be longer and longer.

In practice, figuring out what “bulletproof” entails is difficult. Stern 2014 gives an example of the Forest Service trying to figure out what sort of watershed analysis model is most likely to hold up in court:

…In one case, for example, an IDTL asked the Regional Office whether they could use a particular watershed model that had been used elsewhere. Personnel in the Regional Office instructed the team not to use the model because it would represent a departure from the traditional approach used on the specific forest and could expose the process to additional external scrutiny by setting a new precedent. The IDTL described the response from the Regional Office after the ID team submitted their preliminary report, which did not include the model.

“It was like [from the Region], ‘Hey, you need to run some models because there was this court decision, and it was up-held because they had model information, so you got to run the model for this.’ [laughing] It was kind of like, ‘okay that’s a 180 from what you told us initially.’ And then after the model was run, and we sent the document out, [the Region came back and said], ‘Oh jeez, maybe you shouldn’t have run the model because… the court case was reversed.’ [laughing]”

The uncertainty that the NEPA process creates – how thorough of an analysis will be required, how long it will take to perform, what sorts of mitigations will be required, what sorts of follow-up analysis will be required, will the analysis get litigated – makes it difficult to plan projects with substantial NEPA requirements. A mining executive noted that the NEPA process has resulted in the US having unusually burdensome permitting requirements by world standards:

In considering a new project the first thing I am asked is how long will it take and what will it cost to get it permitted. I can answer this question with a high degree of confidence in most jurisdictions around the world, with the exception of the United States. When I first began working with NEPA in the mid 1980s the time and cost to prepare an EIS for a mining project took about 18 months and cost about $250,000-$300,000. Today [2005] an EIS for a mining project may take 5-8 years and cost $7-8 million or more, before factoring in expected appeals and litigation of the ultimate decision. Thus, it is very difficult to make business decisions in the US under the current permitting environment on federal lands.

Reitze 2012 notes that NEPA is used to increase the costs and unpredictability of fossil fuel development, in an attempt to make renewable energy more attractive by comparison. And Glen 2022 notes that uncertainty around NEPA litigation also makes planning renewable energy projects (in this case, wind power) more difficult and risky. A transmission line executive noted in 2009 that the uncertainty and unclear case law around considering climate change impacts had created a “nightmare” for him.

This uncertainty also makes changing NEPA somewhat risky. Experts have noted, for instance, that rules to accelerate NEPA processes or impose maximum timelines might result in more of them being challenged in court (by failing to take the proper “hard look”). One consultant for energy projects suggested that the Trump-era NEPA changes (which have since been rolled back) were likely to increase project uncertainty and delay of energy projects in the short term, as the changes would result in increased litigation.

Potter goes on to talk about that it’s not entirely NEPA and NEPA is an umbrella.. and a variety of other topics we are familiar with. Are you surprised by any of his paper?