Litigation

Professor Kass asks a fascinating question below. I’m sure other TSW readers, including me,  would be interested.  There are two options.. put your thoughts in the comments below, or email me and I can put each list as a separate post.  Of course, you can just email Professor Cass, but we’d miss your thoughts and the discussion?

Dear Smokey Wire Readers,

I am looking to develop a list of the most famous/infamous federal court decisions impacting federal lands, specifically the Forest Service and BLM. Today’s post noted the impact of Robbins Gulch Road litigation in passage of the National Forest Management Act. If you have thoughts on federal cases that have had similarly significant impacts — for good or for bad — I would be very interested in hearing your views. I can be reached directly at [email protected].

I look forward to your thoughtful and enlightening responses! What cases would be on your top 10 list?

• Heat death

On October 11, the widow of a volunteer who died preparing for the 2021 Bighorn Sheep Count in California’s Anza-Borrego Desert State Park filed a wrongful death lawsuit this week against state parks officials, alleging the event was unsafe due to triple-digit temperatures in the region.  The suit alleges state parks employees should have known high heat (which reached 116 degrees) would endanger volunteers, including 68-year-old Donald White Jr., who died of environmental hypothermia.  The complaint alleges “negligent and reckless conduct” by the state.  (California’s Tort Claims Act may be different from federal law.)

• WUI development proposal

New lawsuit:  Preserve Wild Santee v. City of Santee (California Superior Court)

On October 14, four conservation groups sued a city in San Diego County (again) for approving the Fanita Ranch Project in a state-designated Very High Fire Hazard Severity Zone.  The Project would include 2,900 to 3,000 residential units, commercial structures, a road network, and other infrastructure.  One claim involves the California state version of NEPA (CEQA) and failure to analyze effects on, among other things, special status wildlife and plant species, and wildfire and wildfire safety.  The news release from the Center for Biological Diversity includes a link to the complaint.

• The Wall

On October 19, the Center for Biological Diversity notified the State of Arizona that it would sue to force the state to remove shipping containers it is placing on the Mexican border, which plaintiff alleges violate the Endangered Species Act because they obstruct “one of the last established endangered jaguars and ocelot movement corridors between Mexico and the United States.”  On October 7, the Coronado National Forest had notified the State that the containers on national forest lands are an unauthorized use, and that they require a special use permit.  On October 13, the U. S. Department of Interior also advised that containers were trespassing on Bureau of Reclamation lands and an Indian reservation.  Arizona then sued the Forest Service and Bureau of Reclamation.  On November 2, the Center for Biological Diversity asked to intervene in this lawsuit on the side of the United States.

• Valles Caldera cattle trespass

On October 19, WildEarth Guardians, Western Watersheds Project, and Caldera Action filed a notice of intent to sue the National Park Service over Endangered Species Act violations related to illegal livestock grazing in the Valles Caldera National Preserve in the Jemez Mountains of northern New Mexico. They allege cattle have illegally entered the Preserve from neighboring Forest Service grazing allotments.  The press release includes a link to the Notice.

• Mount St. Helens Spirit Lake

Court decision in Cascade Forest Conservancy v. U. S. Forest Service (9^th Cir.)

On October 19, the circuit court affirmed the district court’s holding that the Forest Service did not violate NEPA in approving construction of a temporary road across a pumice plain in Mount St. Helens National Monument on the Gifford Pinchot National Forest to repair a drainage structure on Spirit Lake.  The court also allowed a project-specific amendment to the forest plan, and approved the Forest Service’s application of 2012 Planning Rule requirements to that amendment.  The opinion is here.

• Wolf Creek Pass village

Court decision in Rocky Mountain Wild v. Dallas (D. Colo.)

On October 20, the district court found that the Forest Service decision to approve an access road to an inholding of private land slated for a mountaintop resort was based on inadequate NEPA analysis.  This was the third court reversal for different versions of the proposal to develop the Wolf Creek Pass area within the Rio Grande National Forest.  The article includes a link to the opinion.  Plaintiffs’ account is here.

• Social cost of greenhouse gases

Court decision in Missouri v. Biden (8^th Cir.)

On October 21, the circuit court affirmed a district court holding that dismissed an attempt by several states to enjoin the Biden Administration’s executive order to identify the social cost of greenhouse gases and consider those estimates in evaluating agency proposals.  Plaintiffs failed to establish standing to sue because they would not be harmed unless unknown future decisions are based on the results of this order.

• Fish and Wildlife Service Director

New lawsuit:  Aland v. U. S. Department of the Interior (N.D. Ill.)

On October 21, Robert H. Aland, a retired lawyer residing in Illlinois, who has been involved in grizzly bear litigation, filed a lawsuit seeking to have the Director of the U. S. Fish and Wildlife Service Martha Williams removed because she does not meet the statutory qualifications for that position:  “scientific education and experience.”  She is an attorney who has experience in government administration of wildlife programs.  He believes her participation in agency decisions would “contaminate” them and risk reversal under judicial review.  (It brings to mind a recent controversy regarding the BLM Director.)

• Suckley’s cuckoo bumblebee

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

On October 24, the U.S. Fish and Wildlife Service agreed to a deadline of December 2024 to determine whether Suckley’s cuckoo bumblebees warrant protection under the Endangered Species Act.  These parasitic bees were once common in prairies, meadows and grasslands across the western United States but have now been lost across more than 50% of their historic range.  The FWS had found that they “may be warranted’ for listing in May, 2021, and should have made a final determination within 12 months.  The press release includes a link to the stipulated settlement.

• Bighorn weed management

Settlement of administrative objections

Bighorn Audubon Society, Forest Service Employees for Environmental Ethics, Western Watersheds Project, Council for the Bighorn Range and Bighorn Native Plant Society, have agreed to drop their administrative objections to a proposal by the Bighorn National Forest to kill “invasive” rangeland species, including up to 76,000 acres of native sagebrush and several hundred acres of native larkspur.  This was the result of the Forest Service agreeing that, “all sagebrush treatments, as well treatments of other native plants, to include duncecap larkspur” would be dropped from the plan.

• Tiem’s buckwheat listing

Notice of intent to sue

On October 25, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue (again) for failing to publish a final listing determination for Tiehm’s buckwheat.  The species is threatened by a proposed lithium mine on BLM land between Reno and Las Vegas, and the FWS had proposed listing it more than a year ago.  The press release includes a link to the notice.  Here is additional background, and we discussed this here.

• Tribe intervenes in timber sale lawsuit

Intervenors in Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On October 28, the Kootenai Tribe of Idaho was granted intervention as a defendant in this lawsuit against the Black Ram Project on the Kootenai National Forest.  According to the court, “The Tribe’s interest in the Project stems from the Tribe’s ancestral and ongoing relationship with the land and natural resources in the Project area  … the Tribe also supports the Project …”

• Mendenhall Lake

New lawsuit:  State of Alaska v. U.S.A. (D. Alaska)

On November 1, the state filed a quiet title action claiming ownership of submerged land underlying Mendenhall Lake and the Mendenhall River at the base of Mendenhall Glacier within the Tongass National Forest.  The case is expected to hinge on the definition of “navigable” waters, and success is expected to lead to use of motorboats on the lake.  This is part of larger strategy being pursued by the state.  The article includes a link to the complaint.

I’ve gotten a little behind.

• Colorado oil and gas leasing

Settlement in Citizens for a Healthy Community v. U. S. Bureau of Land Management (D. Colo.)

On August 11, the BLM settled another case against its resource management plan decisions involving oil and gas leasing.  Under the agreement, BLM will complete an amendment process for its Uncompahgre RMP, and prepare an EIS that will include alternatives that “reconsider the eligibility of lands open to oil and gas leasing, the designation and management of Areas of Critical Environmental Concern (“ACEC”), and management of lands with wilderness characteristics.”  (Availability for leasing on national forest lands is not included, presumably because that decision is made in national forest plan rather than BLM RMPs.)  With limited exceptions, new leases will not be issued prior to the amendment decision.  The settlement also imposes a deadline on completion of range-wide Gunnison sage-grouse amendment from a previous settlement.  (The news release includes a link to the agreement.)

• Malheur NF logging anti-trust case

On September 15, several logging contractors operating on the Malheur National Forest sued Iron Triangle, the recipient of a 2013 stewardship contract, for stifling competition.  “Put simply,” the lawyers write, “Iron Triangle won the stewardship contract by assuring the Forest Service in its written proposal that it would administer the contract in a manner that diversified the local economy and promoted the public interest. Once the contract was secured, however, Iron Triangle did the exact opposite.”

• Custer-Gallatin NF bridge and trail

Court decision in Donohoe v. U. S. Forest Service (D. Mont.)

On September 16, the district court denied plaintiffs’ motion for a preliminary injunction against the Custer-Gallatin National Forest pending appeal of the court’s March 29, 2022 decision to affirm the Forest Service decision to construct a trail and a bridge (the latter of which was already complete).  The trail would adjoin plaintiffs’ property.  The court found that harm to grizzly bears from increased human presence would be “speculative,” but had dismissed the ESA claim for failing to provide a Notice of Intent to sue.  The court had earlier found no violation of NEPA scoping and connected action requirements, nor any violation of the forest plan.  The original opinion is here.

• Endangered Species Act regulations

Court decision in Washington Cattlemen’s Association v. USDC-CAOAK (9^th Cir.)

On September 21, the 9^th Circuit stayed the July 5^th order of the Northern California district court that had vacated the Trump Administration rewrite of Endangered Species Act regulations.  The circuit court held that the district court should have ruled on the validity of the regulations before it vacated them.  The Biden Administration is revising these regulations, which affect the listing process and consultation, and had asked the court to NOT vacate the Trump rules while that is pending.  The blog post above has a link to the 9th Circuit opinion.  The district court decision in Center for Biological Diversity v. Haaland is linked to this article.

• Yosemite National Park logging

Court decision in Earth Island Institute v. Muldoon (E.D. Cal.)

On September 21, the district court held that fuel reduction projects in Yosemite National Park constituted “changes or amendments to” the current Fire Management Plan, which qualified them for a Park Service categorical exclusion, and denied a preliminary injunction.  (See our prior discussion here.)  The court noted that neither party had provided a definition of the quoted phrase, so it deferred to the Park Service, following a 7^th Circuit case that had done something similar.  (The Forest Service Planning Rule does clearly define forest plan amendments as something different from projects.)  The court also allowed the Park Service to tier its categorical exclusion to a prior FMP EIS because the failure of the CEQ regulations to expressly allow tiering for CEs does not mean that it is prohibited.  (The actual reason that the regulations do not mention tiering CEs is because environmental analysis is not relevant to determining if a CE applies, except to the extent it identifies “extraordinary circumstances.”)  The court also found that the projects were properly “tiered to” existing plans (which I think must be comparable to “consistent with” Forest Service plans) – “at this stage of the case.”  (The court used this or similar qualifiers multiple times throughout the opinion.)

One part of the NEPA issue in this case was whether a declaration by someone named Hanson had demonstrated a sufficient level of scientific controversy over the effects of fuel reduction.  The court chose to not delve into it very deeply because of the “limited evidence before the court” at the injunction stage of the lawsuit.

• Wayne NF Sunny Oaks Project

Brief filed in Ohio Environmental Council v. U.S. Forest Service (S.D. Ohio)

On September 16, plaintiffs filed a reply brief in this case (so the complaint would have been filed months ago, but we have apparently not reported it) involving the Sunny Oaks Project on the Wayne National Forest.  It would clearcut existing white oak forest, which plaintiffs assert “may also destroy the soil’s suitability for future oak ecosystem success.”  The case includes NEPA claims, and “nullification” of a forest plan standard for loose bark tree retention for Indiana bats, allegedly illegal under NFMA, as well as violations of other forest plan guidelines.  We’ve previously discussed white oak management here, and this article provides more background on the lawsuit.  Plaintiff’s blog (above) has a link to the brief.

• Ochoco NF Walton Lake Project

Court decision in Blue Mountains Biodiversity Project v. Jeffries (D. Oregon)

On September 26, the district court upheld a logging project in a developed recreation area on the Ochoco National Forest.  The court held that the purpose and need for the project, to curb root rot in a developed recreation area, was consistent with the forest plan requirements to detect and treat diseases.  (While this sounds like an NFMA consistency holding, it is actually a NEPA conclusion that a purpose and need for projects that is based on a forest plan is reasonable, suggesting that one that is not might not be.)  The court also found that including an NFMA-required finding of a preliminary need to amend a forest plan as part of a project’s purpose and need does not violate NEPA (even though it may preclude project alternatives that don’t require an amendment, which it did not in this case, which is good because an amendment is a result of a project proposal, not a purpose).  The court upheld the use of an EA instead of an EIS, and it adequately considered soil impacts.  (The opinion alludes to previously granting plaintiff’s motion for summary judgment on something, but does not explain further.)

• Bull trout recovery plan

Court decision in Save the Bull Trout v. Williams (9^th Cir.)

On September 28, the circuit court held that plaintiffs were barred from litigating the bull trout recovery plan in the Montana district court because some of the plaintiffs had previously made the same claims against the recovery plan in the Oregon district court (and lost).  This blog post explains it further.

• Medford BLM timber sales

Court decision in Klamath-Siskiyou Wildlands Center v. U.S. Fish and Wildlife Service (D. Oregon)

On September 30, the district court held that the FWS violated the ESA when they determined that old-growth logging by the BLM in the Poor Windy and Evans Creek timber sales on 15,848 acres of threatened northern spotted owl habitat would not jeopardize the species or adversely modify its critical habitat.  In particular, the court found that the Service “was not faced with scientific uncertainty, but unanimity concerning the negative impact of reduced [nesting, roosting, and foraging] habitat and the barred owls’ threat to the spotted owl based on the barred owls’ ability to out-compete for food and shelter,” so its assumption that other areas would continue to support spotted owls was arbitrary.  The court added that mitigation measures addressing barred owls are not “reasonably certain to occur.”  The FWS determination of no “incidental take” was also arbitrary.  The judge also found that the Bureau and the Service illegally failed to reinitiate consultation on the effects of the East Evans Creek and Milepost 97 wildfires that actively burned the timber sale area as the Service concluded its evaluation.  Along the way, the court determined that a prior challenge to an RMP does not preclude raising the same issue for a project (so it does not create a similar situation to the bull trout case above).  The court denied two other ESA claims.

• Mexican wolf

New lawsuit:  Grand Canyon Wolf Recovery Project v. Haaland (D. Ariz.)

On October 3, five conservation non-profits filed suit in Arizona against the July 1 revised Section 10(j) rule governing management of Mexican wolves in New Mexico as a “nonessential” experimental population, and preventing their further dispersal in the southwest.  The news release includes a link to the complaint.

• Fire retardant

On October 11, a lawsuit was filed in the Montana federal district court against the Forest Service by Forest Service Employees for Environmental Ethics for violating the Clean Water Act by the continued use of chemical flame retardant from aircraft.

• Snail darter DE-listing

A notice of a final rule to delist the snail darter from protection under the Endangered Species Act was published October 5, at the request of the Center for Biological Diversity, among others.  The fish is known for stopping the construction of the Tellico Dam on the Tennessee River in the first test of ESA in the Supreme Court.  While the dam was later authorized by Congress, other measures resulting from ESA are credited with the species’ recovery.  More in this article.

As the weather cools down, things have heated up in court for the Forest Service.

• Daniel Boone NF timber sale

New case:  Kentucky Heartwood v. U. S. Forest Service (E.D. Ky.)

On September 7, plaintiff conservation group sued the Daniel Boone National Forest over the South Redbird Wildlife Habitat Improvement Project, allegedly the largest timber project on the Forest in nearly 20 years.  Issues include the proper identification of old growth (which is allegedly being logged), the effects of landslides on aquatic species listed under ESA and loss of habitat for endangered bats.  (The news release includes a link to the complaint.  And a storymap!)

• White River NF subdivision

New case:  Berlaimont Estates v. U. S. Forest Service (D. Colo.)

On September 7, the developers behind the 19-home Berlaimont Estates development within the White River National Forest sued the Forest Service for failing to make a decision to approve a road on federal land to reach their planned 680-acre mountaintop community.  Plaintiffs have objected to the alternative proposed by the Forest Service, arguing the route violated their right to “adequate access” for “reasonable use” under ANILCA, and they may sue again if that becomes the final decision.  We’ve talked about this a couple of times, here and here.

• Unita railway on the Ashley NF

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

On September 8, the Center for Biological Diversity, Living Rivers, Sierra Club, and Utah Physicians for a Healthy Environment petitioned the circuit court (having exclusive jurisdiction by statute) to review the U.S. Forest Service’s Record of Decision, issued July 14, 2022, authorizing, inter alia, the granting of a special use permit in response to a request for a right-of-way on National Forest System lands on the Ashley National Forest for the construction, operation, and maintenance of Uinta Basin Railway.  Plaintiffs allege that the proposed railway will spur increased oil production in the Uinta Basin, and that the climate impacts were not considered in the EIS prepared by the Surface Transportation Board.  The lawsuit also challenges the Forest Service’s failure to protect rare plants protected by the Endangered Species Act. Twelve miles of the railway would run through the Ashley National Forest on public lands protected by the Roadless Area Conservation Rule.  (The news release includes a link to the complaint.)

• Badger-Two Medicine lease

Court decision in Solenex v. Haaland (D. D.C.)

On September 9, the district court decided a case filed in 2013 in favor of a company with a 1982 oil and gas lease on a part of the Lewis and Clark National Forest that is south of Glacier National Park, and is considered sacred to Native Americans.  (All other leases in the area have been voluntarily relinquished.)  The lease was cancelled by the Department of the Interior in 2016 and this was upheld by the D. C. Circuit, but on remand the plaintiffs amended their complaint, and the district court agreed with them that the lease was properly issued and not subject to cancellation.  The article includes a link to the opinion, and the prior circuit court decision was noted here.

• Custer-Gallatin grazing

New case:  Western Watersheds Project v. Moore (D. Mont.)

On September 12, nine conservation organizations filed suit over the East Paradise grazing decision, which expanded livestock grazing in grizzly bear habitat on the Custer-Gallatin National Forest near Yellowstone National Park. The decision increases acreages and allows cattle to graze a month earlier than normal, allegedly increasing human-bear conflicts. The suit also names the U.S. Fish and Wildlife Service as a defendant for using out-of-date scientific information and failing to adequately consider the impacts of the grazing decision on grizzly bears.  The news release includes a link to the complaint, and this article includes maps.

• Mt. Graham red squirrels

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

On September 13, the Center for Biological Diversity, Maricopa Audubon Society and Mount Graham Coalition sued the Forest Service and Fish and Wildlife Service for violating the Endangered Species Act when approving special use permits for an organizational camp (expired permit) and recreational cabins (2015 permit) on the Coronado National Forest in the only habitat for the endangered Mt. Graham red squirrel.  In the summer of 2017, the Frye Fire killed between 61-78% of the remaining red squirrel population and decimated a significant portion of its remaining habitat.  Consultation on both permits was completed in 2021.  The news release has a link to the complaint.

• West coast fisher listing 

New case:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (N.D. Cal.)

On September 13, the Center for Biological Diversity, Environmental Protection Information Center and Klamath-Siskiyou Wildlands Center sued the Fish and Wildlife Service for denying Endangered Species Act protections for fisher populations in southern Oregon and northern California when it listed other populations in the southern Sierra Nevada as threatened in 2020.  The challenge is based on plaintiffs’ interpretation of the best available science, and largely related to threats from logging and fire.  (The article has a link to the complaint.)

• Idaho water rights

Recently enacted Idaho water rights forfeiture laws create a state process where ranchers can potentially gain control of federal water rights already decided by a court. Ranchers have started using that process, and the Idaho Department of Water Resources this year, at the request of ranchers, initiated multiple actions against water rights claimed by the federal government based on those water rights not being put to beneficial use.

A lawsuit filed in June against Idaho and the Idaho Department of Water Resources by the U.S. Department of Justice contends that it does put the water to a beneficial use because it issues grazing permits to ranchers who in turn graze livestock that drink the water.  The federal government also argues that the state’s forfeiture procedure violates the U.S. Constitution’s supremacy clause, which states that federal law takes precedence over state law. The Justice Department also says the laws violate parts of the Idaho Constitution.  In a case with statewide ramifications for millions of acres of land in Idaho administered by the Forest Service and Bureau of Land Management, and their associated instream water rights, the Idaho legislature was granted intervention on September 15.

• Oregon state lands

The Oregon Supreme Court has declined to hear an appeal from 13 counties in a long-running $1 billion lawsuit over timber revenue and what constitutes “the greatest permanent value” when it comes to state forest management.  The decision leaves in place a lower court ruling saying that Oregon can manage forests for a range of values that include recreation, water quality and wildlife habitat — not just logging revenue.  The Oregon Department of Justice, which represented the state government in the case called the Supreme Court’s decision a “victory for Oregon’s environment and for sound forest management in general.”

• Forest fire caused by a lumber mill?

A lawsuit filed on September 8 in Sacramento County Superior Court on behalf of a family whose home was destroyed by the (aptly named) Mill Fire alleges that the Roseburg Forest Products mill in Weed failed to properly handle hot ash, which ignited a fire that burned 4,000 acres, killed two people and burned dozens of homes.

ESA LISTING NOTE

• Tricolored bat proposed listing

On September 14, the U. S. Fish and Wildlife Service proposed to list the tricolored bat as endangered, primarily due to the range-wide impacts of white-noise syndrome, caused by a deadly fungus affecting cave-dwelling bats across the continent.  Other threats include disturbance to bats in their roosting, foraging, commuting and wintering habitats and mortality at wind energy facilities. With regard to forests, the proposed rule said:

“While temporary or permanent suitable forested habitat loss may occur throughout the species’ range, impacts to tricolored bat typically occur at a more local scale (i.e., individuals and potentially colonies), and summer forested habitat continues to be widely available across the species’ range. Based on this information, forested habitat loss is not a major driver of the species’ status, and suitable forest habitat is not limiting for tricolored bat now nor is it likely to be limiting in the future. Therefore, we conclude that designating the forest habitat of the tricolored bat as critical habitat is not prudent.”

However, effects on the species would need to be consulted on for projects in bat habitat.  The tricolored bat is found east of the Rocky Mountains in 39 U.S. states and the District of Columbia.  This article provides more background and a link to the FWS announcement.

In the only case where the Forest Service is a party …

• Settlement agreement in Crow Creek Pipeline case

On August 10, a federal district court approved an agreement between the U.S. Forest Service and two environmental groups that filed a lawsuit to stop the 50-mile Crow Creek Pipeline Project that partially crosses the Caribou-Targhee National Forest.  The Forest Service agreed to first conduct additional environmental studies.  Here is plaintiffs’ take:  “the government canceled the project without even waiting for a final court order.”

Other cases of possible interest …

• Dixie Valley toad

Court decision in Fallon Paiute-Shoshone Tribe v. U. S. Department of the Interior (9th Cir.)

On July 25, the 9^th Circuit Court of Appeals refused to bar construction of a Nevada geothermal plant that opponents say threatens to destroy a sacred site and drive the rare Dixie Valley toad to extinction. However, following the emergency listing of the toad under ESA, the developer has agreed to delay construction while consultation occurs between the BLM and Fish and Wildlife Service.  The district court case was discussed here, and remains pending.

• West Elk Coal Mine

New case: WildEarth Guardians v. Colorado Department of Public Health and Environment 

On July 26, WildEarth Guardians, Center for Biological Diversity, Sierra Club, High Country Conservation Advocates, and Wilderness Workshop sued in a state court to compel Colorado state agencies to comply with their mandatory duty to timely grant or deny the air pollution operating permit application submitted for the West Elk Coal Mine located on the Gunnison National Forest, as required by the Colorado Air Pollution Prevention and Control Act.  Under this state law, major polluters are required to obtain and comply with air pollution operating permits.  The state was required to either approve or deny a permit for the mine by September 2021.  The press release includes a link to the complaint.  We last discussed the West Elk Mine here.

• Mt. Rushmore fireworks

On July 27, the 8^th Circuit Court of Appeals dismissed an appeal by the Governor of South Dakota and 16 other intervenor states of the decision by the National Park Service to deny a permit for fireworks at Mt. Rushmore National Park in 2021 (which was upheld by the district court).  The case was now considered moot, but the court also upheld the requirement to obtain a permit, stating, “Nobody has a right to shoot off fireworks on someone else’s land.”  There is a link to the opinion in this entertaining take by the Dakota Free Press.  The original case was summarized here.

• Logging and marbled murrelets

Court decision in Cascadia Wildlands v. Scott Timber Co. (D. Oregon).

On July 29, the district court enjoined three timber companies from logging on the Benson Ridge Tract, a private parcel of land (that used to be part of the Elliott State Forest) in the Coastal Range of Oregon, because the logging project would “take” marbled murrelets, a threatened species, in violation of section 9 of the ESA.  The court specifically upheld the determination that the site is occupied by marbled murrelets and that a 49-acre clearcut would result in harm.

• San Pedro grazing

Settlement agreement in Western Watersheds Project v. Feldhausen (D. Ariz.)

On August 1, The Bureau of Land Management and Fish and Wildlife Service agreed to reevaluate the impacts of the resource management plan’s livestock grazing decisions on plants and animals inside Arizona’s San Pedro Riparian National Conservation Area.  This will include preparing a biological assessment and biological opinion analyzing the impacts of the RMP proposal for additional grazing on the Huachuca water umbel, southwestern willow flycatcher, desert pupfish, Gila topminnow, northern Mexican gartersnake, yellow-billed cuckoo and Arizona eryngo.  The article has a link to the settlement agreement.  The complaint was summarized here.

• Montana/Wyoming RMPs

Court decision in Western Organization of Resource Councils v. U. S. Bureau of Land Management (D. Mont.)

On August 3, the district court ordered the BLM to consider a no-leasing alternative and to disclose to the public the environmental and human health harms from the combustion of federal coal for the Miles City (MT) and Buffalo (WY) resource management plans in the Powder River Basin.  The news release contains a link to the opinion.

• Gray wolves

New case:  Center for Biological Diversity v. USDI (D. Mont.)

On August 9, the CBD along with the Sierra Club, the Humane Society of the United States and the Humane Society Legislative Fund challenged the U.S. Fish and Wildlife Service’s failure to make a mandatory 1-year finding on whether the gray wolf warrants (re)designation as “threatened” or “endangered” under the ESA.  They claim laws passed by Idaho and Montana this past year have allowed for new and aggressive wolf-killing measures that are putting too much pressure on the species that was delisted in Idaho, Montana and Wyoming in 2011 and 2012.  The article has a link to the complaint.  (I like the expression on the woman’s face.)

New case:  Center for Biological Diversity v. Washington Department of Fish and Wildlife (Washington state court)

Also, on August 5, five conservation groups filed a lawsuit asking a Washington State court to enforce a governor’s order to enact wolf management rules.

• Chinook salmon

On August 8, a federal district court in Seattle held that NOAA Fisheries had authorized Southeast Alaska’s chinook troll fishery at levels that the federal agency admits are pushing federally protected southern resident killer whales and wild chinook salmon closer to extinction.  The Court found that NOAA violated the ESA by improperly relying on uncertain mitigation measures in the form of hatchery production that “lack specific and binding plans, lack specific deadlines or otherwise-enforceable obligations, and are not subject to agency control or otherwise reasonably certain to occur.” The Court further found NOAA violated the ESA by relying on the supposed benefits to SRKWs from increasing hatchery production, without fully evaluating the harm those same hatchery increases will cause to native Chinook salmon populations in Puget Sound, the Columbia River, the Snake River, and the Willamette River. NOAA recognizes hatcheries and associated impacts as one of the top four factors contributing to the decline of wild salmon, along with overharvest, habitat loss, and hydroelectric dams.  Reduced reliance on hatcheries could lead to greater emphasis on habitat conditions, including waters on public lands.

• Corrizo Plain National Monument

Settlement agreement in Center for Biological Diversity v. U. S. Bureau of Land Management (C.D. Cal.)

On August 12, a legal agreement was reached to secure the permanent closure and restoration of 11 long-dormant oil wells along the Santa Barbara-San Luis Obispo County line inside the Carrizo Plain National Monument.   A proposed new permit for additional operations will not be granted by the BLM.  The news release has a link to the agreement.

No Forest Service Summary since July 8.

FOREST SERVICE AND BLM CASES

• Wild horse removal

Court decision in Friends of Animals v. Culver (D. D.C.)

On June 28, the district court found that the BLM had violated the Wild Free-Roaming Horses and Burros Act with its 2019 decision to remove over ten years (instead of “immediately”) a number of wild horses and burros from the Twin Peaks Herd Management Area, a range located along the California-Nevada Border.  However, the court did not vacate the decision pending remand for reconsideration because the decision complied with NEPA, and vacating the decision would harm the ecological interests that the decision would protect.  (This does not look like a win for the plaintiffs.)

• Oil and gas leases

New case:  Dakota Resource Council v. U. S. Department of the Interior (D. D.C.)

On June 28, ten conservation groups challenged BLM’s decision to approve the sale of 173 oil and gas lease parcels, encompassing 144,000 acres of public lands across eight western states, through an analysis contained in seven separate environmental assessments.  They allege failure to find that the cumulative effects of greenhouse gas pollution are significant, and that the BLM failed to take actions necessary to prevent the further unnecessary or undue degradation of public lands from acknowledged climate impacts, as required by FLPMA.  This would be the first onshore lease sale during the Biden Administration.  (The article includes a link to the complaint.)

• Fremont-Winema grazing

Court decision in Concerned Friends of the Winema v. McKay (D. Or.)

On July 5, the district court ruled that the Forest Service adequately analyzed livestock impacts of an allotment management plan for the Antelope Allotment on the Fremont-Winema National Forest.  The court found compliance with ESA, NEPA and NFMA, including considering the effect of climate change on the Oregon spotted frog.  This article discusses the opinion.

• BLM-Oregon’s Integrated Vegetation Management forest management plan

Notice of Intent

On July 5, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands, Oregon Wild, and the Center for Biological Diversity notified the Oregon BLM and the Fish and Wildlife Service of their intent to sue regarding the BLM’s Integrated Vegetation Management for Resilient Lands Programmatic Environmental Assessment and the USFWS’s approval of the Programmatic Biological Opinion for Southwest Dry Forest Resilient Lands Activities.  Both address actions within a 684,185-acre treatment area in Oregon over ten years or more.  The ESA claims would relate to marbled murrelet and coastal marten.  The news release has a link to the notice, and the views of an Oregon State University fire specialist are here.

• Willamette Lang Dam and Hwy 46 projects

Settlement in Cascadia Wildlands v. U. S. Forest Service (D. Or.)

A preliminary injunction was imposed in this case in December (here), and the parties settled the claim by the Forest Service agreeing to not to move forward with many of the planned timber sale units, modifying other units to reduce their size or to ensure they retain at least 60% canopy cover, and site visits and monitoring.  An attorney for Cascadia Wildlands was asked about the award of $115,000 in attorney fees:

While critics have claimed that environmental groups are motivated by attorney fee awards to file lawsuits, Cady characterized this allegation as “hilarious.”  “Nobody is in this game to get rich,” he said. “Environmental lawyers are not usually the ones with nice cars.”  If the nonprofits intended to maximize attorney fees, they would “litigate to the end” instead of settling, but that’s not their goal, Cady said. “It’s such a small amount of money overall that we don’t even budget for it,” he said.

(I guess my revisiting this site wasn’t allowed, but the source was this.)

• Fremont-Winema thinning

New case:  Oregon Wild v. U. S. Forest Service (D. Or.)

On July 12, WildEarth Guardians and Oregon Wild filed a lawsuit against the Fremont-Winema National Forest’s use of a categorical exclusion for “timber stand and wildlife habitat improvement” to address the impacts of commercial thinning across thousands of acres of national forest as part of the South Warner, Bear Wallow, and Baby Bear logging projects.  This case was discussed here, which includes a link to the complaint.

• Gila feral cattle

Settlement in New Mexico Cattle Growers Association v. Vilsack (D. N.M.)

A dismissal agreement announced in early July states that the U.S. Forest Service must give at least 75 days’ notice to ranchers and the public before any aerial killing of feral cattle in the Gila National Forest during the next three years.  According to this article, “Rough backcountry makes it difficult to catch the feral cows that were born in the wild and never domesticated.”  This case was introduced here.

• Helena-Lewis and Clark revised forest plan

New lawsuit

On July 19, Helena Hunters and Anglers Association, Western Watersheds Project, the Sierra Club and WildEarth Guardians filed a lawsuit challenging the revised forest plan on the Helena-Lewis and Clark National Forest.  They object to the removal of ten wildlife standards that were in the 1986 forest plan that “provided important protections for big game habitat and security and benefited other species – including threatened grizzly bears and lynx – who also depend on sufficient hiding cover and low open-road densities.”  The case is discussed in this article.

OTHER CASES

• Gualala River logging

Court decision in Friends of Gualala River v. Gualala Redwood Timber, LLC (N.D. Cal.)

On June 17, the district court did not find justification for a preliminary injunction against harvesting trees on private property under the Endangered Species Act because harm to the California red-legged frog, coho salmon and steelhead was not reasonably certain to occur.

• Grant-Kohrs Ranch

New lawsuit

According to this article, Save the Bull Trout and Alliance for the Wild Rockies, say that the U.S. Department of the Interior and West Side Ditch Company are violating the Endangered Species Act in managing the Grant-Kohrs Ranch national historic site. “The DOI’s ‘cultural’ agricultural watering at the Grant-Kohrs Ranch has effectively dewatered the Upper Clark Fork River, resulting in not enough instream flow for the bull trout to survive,” the suit said.

• Mexican gray wolves

Notice of Intent

On July 1, five conservation organizations provided a sixty-day notice of intent to sue the U.S. Fish & Wildlife Service for failing to comply with the ESA when it published the final §10(j) management rule for the experimental population of the Mexican wolf in response to a remand in a prior court case.  This press release includes a link to the notice.

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

On July 12, CBD and Defenders of Wildlife sued the Fish and Wildlife Service for violating NEPA when it adopted the same revised §10(j) management rule for Mexican wolves.  This article has a link to the new rule and the complaint.

One of the issues is the limited area on the Arizona-New Mexico border where wolves would be welcomed.  The lawsuit also states that the wild population is propped up by a supplemental feeding program, which uses strategically placed food caches to keep wolves from killing livestock.  (Maybe they could use them to catch the wild cows on the Gila?)

Court decision in County Commissioners of the County of Sierra v. U. S. Department of the Interior (D. N.M.)

On July 14, the district court dismissed a case filed against the Fish and Wildlife Service’s decision in March 2021 to translocate two adult Mexican wolves and their dependent pups that had been classified as “problem wolves” to a privately-owned ranch.  This was considered to be an “implementation action” of a prior decision, and therefore not reviewable by the court under the Administrative Procedure Act.

• Rocky Flats National Wildlife Refuge

Court decision in Rocky Mountain Peace and Justice Center v. U. S. Fish and Wildlife Service (10th Cir.)

On July 19, the circuit court affirmed the district court holding that the FWS conducted a legally adequate study before allowing public trails at Rocky Flats National Wildlife Refuge, which encompasses part of a former nuclear weapons parts manufacturing site. According to reporting from the Denver Post (according to this article), the original appeal stated that the federal agency did not comply with the National Environmental Policy Act and the Endangered Species Act in opening the refuge to the public three years ago.

• Klamath Basin national wildlife refuges

Court decision in Audubon Society of Portland v. Haaland (9th Cir.)

On July 22, the circuit court affirmed the district court in rejecting challenges to comprehensive conservation plans for three national wildlife refuges in the Klamath Basin National Wildlife Refuge Complex.  It found compliance with NEPA regarding pesticide applications on the Lower Klamath and Tule Lake Refuges.  It also found compliance with NEPA regarding the effects of grazing on the Clear Lake Refuge.  As to the sage-grouse, the panel held that the Conservation Plan discussed at length the potential effects of grazing on sage-grouse and why grazing would be beneficial to sage-grouse habitat.  The court found compliance with the Refuge Act by all of the plans.

• Washington state lands

Court decision in Conservation Northwest v. Commissioner of Public Lands (Supreme Court of Washington)

On July 22, the Washington court said the use of revenue generated by logging public lands may be constitutionally protected, but it’s not the only way to manage public land for the benefit of “all people,” as the state constitution states. The tethering of public schools to timber revenue has long been a heated controversy in Washington. “There appear to be myriad ways [the Department of Natural Resources] could choose to generate revenue from the state and forest board lands or otherwise put them to use for the benefit of the enumerated beneficiaries,” the state Supreme Court’s majority opinion stated.  More background may be found here.

• TP fire

A man arrested in connection with the Pipeline Fire was placed on a yearlong probation after he pleaded guilty Wednesday for starting a fire on the Coconino National Forest in June.  His lawyer Daniel Kaiser told The Arizona Republic he wanted to emphasize that Riser was sentenced for burning toilet paper, not for starting the Pipeline Fire.

The Forest Service summaries are here:  Litigation Weekly July 08 2022 Email

Individual links are to court documents.

• 0001_Friends of The Clearwater 21 189

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

On June 24, the district court reversed, remanded and enjoined the End of the World and Hungry Ridge Projects on the Nez Perce-Clearwater National Forest.  An EIS (instead of an EA) will be required for the End of the World Project and both projects failed to employ the forest plan’s definition of old growth or to properly analyze the cumulative effects on old growth.  We discussed that here.  The court did uphold other effects analysis, and the “no effect” determination for grizzly bears under ESA because they were not considered “occupied” by the species, even though bears may be present.

• 0002_Romey SPU 20 14 Order

Court decision in Romey v. United States (D. Alaska)

On June 27, the district court granted the Forest Service motion to dismiss this case regarding a special use permit for the Wolf Creek Boatworks on the Tongass National Forest. The court determined that the plaintiffs lack standing because a land exchange had already taken place.

• 0003_ ISPMB re Burros complaint Az

New case:  International Society for the Protection of Mustangs and Burros v. U.S. Department of Agriculture (D. Ariz.)

On June 28, 2022, the plaintiff filed a complaint alleging violation of NEPA (improper use of a categorical exclusion), the Wild Free-Roaming Horses and Burros Act of 1971, and the APA, following a March 21, 2022, notice of a planned capturing and removal of up to 20 feral horses on the Apache Sitgreaves National Forest.

• 0004_1-main

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

On June 30, CBD, the Yaak Valley Resource Council and WildEarth Guardians filed a complaint against the Black Ram Project on the Kootenai National Forest.  It alleges NEPA violations related to grizzly bears and climate change and failure to prepare an EIS, and failure to comply with forest plan requirements for wild and scenic rivers and old growth.  We discussed that here.  Plaintiffs also notified the Forest Service and Fish and Wildlife Service of their intent to sue regarding effects on grizzly bears.

• 0005_CBD Order

Court decision in Center for Biological Diversity v. Haaland and State of California v. Haaland (N.D. Cal.)

On July 5, the district court vacated the 2019 Endangered Species Act rules promulgated by the Trump Administration.  The Blanket Rule Repeal, 84 Fed. Reg. 44,753, eliminated the FWS’s former policy of automatically extending to threatened species the protections against “take” that Section 9 automatically affords to endangered species. And the Interagency Consultation Rule, 84 Fed. Reg. 44,976, changed how the Services work with federal agencies to prevent proposed agency actions that could harm listed species or their critical habitat.

BLOGGER’S BONUS

• ESA Critical Habitat definition

On June 24, 2022, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service published a final rule rescinding the Trump administration’s 2020 final rule defining “habitat” for the purpose of informing designation of areas as “critical habitat” under the Endangered Species Act.  We previously discussed this here.

• Settlement in Idaho predator control lawsuit

The U.S. Department of Agriculture’s Wildlife Services has agreed to settle a lawsuit by completing an extensive environmental study on its methods of predator control in Idaho, and also agreed not to use poison gas cartridges or fire to kill wolf pups in dens in Idaho until the study is finished at the end of 2024.  This extends an existing suspension of predator control in wilderness and other areas to species other than wolves, and precludes Wildlife Services from killing predators to bolster deer and elk populations, pending the environmental analysis.  The Forest Service and BLM were also defendants in this case.

• Court decision in Cascadia Wildlands v. Scott Timber Co. (D. Oregon)

On June 28, the district court found that the proposed logging of the Benson Ridge parcel (a private parcel of land Defendants purchased from the State of Oregon, formerly part of the Elliott State Forest) would harm and harass threatened marbled murrelets, in violation of the federal Endangered Species Act prohibition against incidental take of listed species in the absence of a permit from the listing agency. The court’s ruling permanently enjoins logging of the occupied murrelet habitat.  The news release has a link to the opinion.  (This is the case referred to in Bob Zybach’s comments about attorney fees here.)  In response to a 2016 lawsuit, the Oregon Board of Forestry is in the process of developing rules to protect murrelet sites on state and private timber lands, which could lead to a permit for incidental take.