Here is the Forest Service summary:  Litigation Weekly July 01 2022 Email

Other links are to court documents.

• 0001_20220624_ApacheStronghold_v_UnitedStates_etal_21-15295_9thCir_OakFlatLandExchange_Tonto_Decision

Court decision in Apache Stronghold v. U.S Department of Agriculture, (9th Cir.)

On June 24, the 9th Circuit Court of Appeals affirmed the District Court of Arizona’s decision denying plaintiff’s motion for a preliminary injunction against the Oak Flat Resolution Copper land exchange on the Tonto National Forest.  The case concerns the alleged violation of the Religious Freedom Restoration Act, the Free Exercise Clause of the Constitution’s First Amendment, and a trust obligation imposed on the United States by the 1892 Treaty of Santa Fe between the Apache and the United States.

• 0002_20220621_MountainCommForFireSafety_etal_v_Elliott_20-55660_9thCir_CuddyProj_EnBancDenied

Court decision in Mountain Communities for Fire Safety v. Elliott (9th Cir.)

On June 21, the 9th Circuit Court of Appeals denied petition for rehearing en banc submitted by plaintiffs. The case concerns the use of categorical exclusion 6 (for timber stand and wildlife improvement with commercial thinning) for the Cuddy Valley Project on the Los Padres National Forest, which was summarized here.

• 0003_20220616_EarthIslandInst_etal_v_Nash_etal_19-01420_EDCal_BiomassProj_Order

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

On June 16, the Eastern District of California issued a favorable decision to the Forest Service. This case concerns the combined efforts of the State of California, U.S. Housing and Urban Development, and the Forest Service with regard to the 2016 Rim Fire Recovery and Restoration Project on the Stanislaus National Forest and the California Biomass Project. The court determined the 2016 Rim Fire Project activities had already been completed and no new environmental impact statement (EIS) was needed by the State of California, and the use of the relief act funding was permissible.

• 0004_Earth Island NPS_lawsuit-against-yosemite-national-park-logging

New case against the National Park Service:  Earth Island Institute v. Muldoon (E.D. Cal.)

On June 13, the plaintiff filed a complaint against the National Park Service regarding its Biomass Removal and Thinning Project (for removal of hazardous fuels) to protect Sequoias in the Yosemite National Park. The plaintiff alleges the Agency improperly used a categorical exclusion (CE) in authorizing the project.

BLOGGER’S BONUS

The last “weekly” we received was dated June 10, so here’s some other things that have happened since then.

• Colville sheep grazing 

Court decision in WildEarth Guardians v. Bail (E.D. Wash.)

On June 7, the district court upheld the Forest Service’s authorization of domestic sheep grazing on allotments within the Okanogan-Wenatchee National Forest.  The court relied on a 2014 amendment of the Federal Land Management and Policy Act that allowed grazing to continue pending completing NEPA analysis for permit renewals to hold that, “Because the Forest Service has not completed its final analysis, there is no final decision for this Court to review at this time.”

• R6 eastside old growth amendment:  Hells Canyon complaint

New case:  Greater Hells Canyon Council v. Wilkes (D. Or.)

On June 14, six environmental organizations filed a complaint against the “Forest Plans Amendment to Forest Management Direction for Large Diameter Trees in Eastern Oregon and Southeastern Washington,” which replaces the 1995 “Eastside Screens” amendment with guidelines allowing more harvesting of large trees on six national forests.  Plaintiffs allege NEPA violations of inadequate effects analysis and failure to prepare an EIS, and NFMA violations from lack of an administrative objection process and failure to follow procedures for “significant” changes in the forest plans.  We discussed this here.

• NM/WY oil and gas permits

New case against the BLM:  Center for Biological Diversity v. U. S. Department of the Interior (D. D.C.)

On June 15, the Center for Biological Diversity and WildEarth Guardians filed a complaint challenging at least 3,535 applications for permit to drill (“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin in violation of NEPA, ESA, and FLPMA and those statutes’ implementing regulations.  (The article includes a link to the 254-page complaint.)

• Glyphosate

Court decision in Natural Resources Defense Council v. U. S. Environmental Protection Agency (9^th Cir.)

On June 17, the circuit court ruled that the EPA’s determination that glyphosate (the active ingredient in the herbicide Roundup) was not likely to be carcinogenic was not supported by substantial evidence.  It also held that EPA’s registration review decision under FIFRA was an “action” that triggered the ESA’s consultation requirement, which the agency admitted it did not comply with.  The court did not vacate the decision while further analysis occurs as required by FIFRA by October 2022.  (The article includes a link to the opinion.)

Maybe the Forest Service weekly summaries are quarterly now – the last one we received was dated March 11.

Here is the summary:  “Nothing to Report.”

BLOGGER’S BONUS

• Oil and gas misinformation

We have had several discussions of the “villainous” behavior of oil and gas companies.  The harm caused by their role in climate change misinformation is being litigated in a number of lawsuits across the country.  The defendants have initially hung them up for as long as five years arguing against hearing the cases in state and local courts.  If companies can keep the lawsuits in federal courts, they’re more likely to be dismissed under federal laws such as the Clean Air Act.  On February 28, a Hawaii court became the first to decide that state courts are the appropriate venue.

That long-fought battle over the appropriate venue is evidence of the lengths companies will go to in throwing up hurdles before trial, Lewis & Clark Law School professor Lisa Benjamin said.

“The disclosure of deceptive information and misinformation will be one of the most reputational damaging parts of this litigation, even if the cases themselves are not successful, so I think companies will be very sensitive to that,” Benjamin said.

Another case filed by the city of Baltimore is currently in federal court to determine which court it should be in.

• Ochoco road access

A federal district court issued an order on May 17 requiring a private ranch to allow the public and the government to use Teaters Road to access the BLM North Fork Crooked River area and the Ochoco National Forest while litigation is ongoing.

• BLM Siuslaw logging

Cascadia Wildlands v. Adcock (D. Or.)

On May 25, Cascadia Wildlands and Oregon Wild challenged the Bureau of Land Management’s Siuslaw Field Office’s plan to log public lands across seven watersheds in Oregon in the agency’s “N126 Late Successional Reserve Landscape Plan Project” without completing an environmental impact statement.  The plan is designed to generate 380 million board feet of lumber.  Logging of over 16,000 acres of Late-Successional Reserves and Riparian Reserves is also alleged to be inconsistent with the applicable resource management plan and therefore a violation of the Federal Land Policy and Management Act.  (The news release includes a link to the complaint.)

• Sierra fishers

Unite the Parks v. U. S. Forest Service (E.D. Cal.)

In late May, the district court again denied a request by conservation groups to stop 31 logging projects in Pacific fisher habitat on the Sierra and Sequoia national forests after the Forest Service completed further review on remand from the Ninth Circuit (which was discussed here).

• Caribou-Targhee gold mine

The Idaho Conservation League and Greater Yellowstone Coalition filed a lawsuit in a U.S. district court in early June to stop Excellon Idaho Gold’s Kilgore Gold Exploration Project in the Caribou-Targhee National Forest west of Yellowstone National Park.  The Forest Service had produced a new plan after losing a lawsuit in 2018.  Plaintiffs allege violations of the Forest Service Organic Act and NEPA, where the Forest Service used the Trump administration’s 2020 rewrite of the CEQ regulations and did not prepare an EIS.

• Bitterroot National Forest in the Supreme Court

The U. S. Supreme Court announced June 6 it would hear Wilkins v. United States, a case regarding the Quiet Title Act, next term.  The plaintiffs in the case claim that the Forest Service exceeded the scope of a previously agreed upon easement by providing public access across their properties to the Bitterroot National Forest.  The Supreme Court will decide whether a statute of limitations precludes a court from considering such claims.  The Ninth Circuit opinion is here.

• Experimental populations of listed species

On June 7, the U. S. Fish and Wildlife Service proposed a change in its rule governing the reintroduction of listed species.  (The article includes a link to the proposed rule.)

“To provide for the conservation of certain species, we have concluded that it may be increasingly necessary and appropriate to establish experimental populations outside of their historical range if the ability of the habitat to support one or more life history stages has been reduced due to threats, such as climate change or invasive species.”

• Kirtland’s snake

Center for Biological Diversity v. Williams (E.D. Ill.)

On June 8, The Center for Biological Diversity and Hoosier Environmental Council sued the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the Kirtland’s snake.  It is found in forested riparian areas in Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio and Tennessee (and has been extirpated in Wisconsin and Pennsylvania, as well as over half the counties where they were once found).  (The press release has a link to the complaint.)

• Bee-fish

Almond Alliance of California v. Fish and Game Commission 

On May 31, reporters were handed a gift by a California court:

Is a bee a fish? California court says it could be

California Court Rules that Bees are a Type of Fish

When Is a Bumblebee a Fish? When a California Court Says So

“If it looks like a duck, walks like a duck and quacks like a duck, it’s probably a duck. But a new California court ruling means that if it looks like a bee, flies like a bee and buzzes like a bee — it’s a fish.”

California’s Third Appellate District Court of Appeal ruled that bees could be protected under a state law to protect endangered species because bees meet the state’s legal definition of fish.”

Read on for a lesson in how a court interprets laws and regulations.

Links provide more information

• NEPA Regulations

On April 19, the Council on Environmental Quality finalized the first of two phases of rulemaking to replace the Trump administration’s 2020 rewrite of NEPA procedures. The Phase I Regulations address three primary issues: (1) how to prepare a purpose and need statement in NEPA documentation; (2) the scope of agency-specific NEPA implementation regulations; and (3) the definition of “effects” and “cumulative impacts.”  (The article includes a link to the new rule.)  The second phase is expected to be broader.  Five lawsuits currently pending on the Trump rule will continue.  Litigation also continues against the Forest Service NEPA regulations adopted in 2020.

• Custer Gallatin grazing NOI

On May 5, eight conservation groups notified the Custer Gallatin National Forest and the U. S. Fish and Wildlife Service of their intent to sue over the East Paradise Range Allotment Management Plan, which authorized grazing on three of the six allotments described in the plan.  The notice states that the agencies failed to take a “hard look” at the plan’s impacts on grizzly bears in the Greater Yellowstone Ecosystem.

• Rosemont copper mine 

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

On May 12, the 9^th Circuit affirmed the district court of Arizona’s decision that the Forest Service acted arbitrarily and capriciously in approving the plan of operations for the Rosemont Copper Mine on the Coronado National Forest based on its misunderstanding of Section 612 of the Surface Resources and Multiple Use Act of 1955, and on its incorrect assumption that Rosemont’s mining claims are valid under the 1812 Mining Law.  (This article provides additional information.)  The Copper World Mine on adjacent private land is proceeding.

• Bi-state sage grouse listing

Court decision in Desert Survivors v. U. S. D. I. (N.D. Cal.)

On May 16, the district court overturned the U.S. Fish and Wildlife Service’s withdrawal of a proposed Endangered Species Act listing and section 4(d) rule for the “bi-state population” of the greater sage grouse found along the California-Nevada border (including the Humboldt-Toiyabe National Forest).  The court held that the agency failed to adequately explain their determination that the species did not warrant listing based on the available science.  The court reinstated the 2013 proposal to list the species as threatened and required a new listing decision.  (The article includes a link to the opinion.)

• Flathead Wild and Scenic River

New case:  Friends of the Flathead River v. U. S. Forest Service (D. Mont.)

On May 16, a newly founded nonprofit filed a suit claiming the Flathead National Forest is violating the Wild and Scenic Rivers Act, the Forest Service Organic Act and the Administrative Procedure Act by not updating a 1985 comprehensive management plan for the Wild and Scenic River to better manage heavy use.

• Kootenai Knotty Pine Project

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

On May 17, five conservation groups filed suit against the Knotty Pine timber project on the Kootenai National Forest.  The project would include roughly 3,000 acres of commercial logging as well 40 miles of road maintenance and road building.  Plaintiffs allege violation of forest plan requirements to provide habitat security for grizzly bears.  (An ESA claim may be added.)  (A link to the complaint is at the end of this article.)

• Bridger-Teton grazing

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

On May 17, the district court upheld the Upper Green River Area Rangeland Project’s approval of continued livestock grazing on six allotments on the Bridger-Teton National Forest.  The court held that the Forest Service and Fish and Wildlife Service properly determined that 72 grizzlies could be taken as a result of grazing conflicts within 10 years without specific guidelines for age and sex.  (Note:  the characterization of incidental take as being a “threat” to these bears is not inappropriate as suggested here.)

• Gunnison Energy plan

Court decision in Citizens for a Healthy Community v. U. S. Department of the Interior (D. Colo.)

On May 19, the district court remanded a master development plan for oil and gas development in Colorado’s North Fork Valley.  The court said the BLM and Forest Service had admitted that they did not comply with recent executive orders and other rulings that they must weigh any proposal’s contributions to greenhouse gases and climate change.  (Additional background is in this article.)

• Red tree vole

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

On May 24, the U. S. Fish and Wildlife Service agreed to reconsider its decision in 2019 to reverse itself and not list the red tree vole under the Endangered Species Act.  The voles are found in old-growth forests on the Oregon coast.  (A link to the original complaint may be found here.)

• National park e-bikes

Court decision in Public Employees for Environmental Responsibility v. National Park Service (D. D.C.)

On May 24, the district court found that the Park Service had failed to comply with NEPA when it authorized e-bikes to travel on trails and roads used by conventional bicycles without preparing an EIS or EA.  However, the judge did not block their use pending NEPA compliance.  (The article includes a link to the opinion.)

• APHIS NOI

On May 24, The Xerces Society and Center for Biological Diversity filed a notice of intent to sue the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service for failing to properly consider harms to endangered species caused by insecticide spraying across western grasslands.  The most popular insecticide, diflubenzuron, is used to control gypsy moths and pine beetles, as well as grasshoppers on rangelands.  There are more than 230 listed species in the 17 states encompassing the spraying and legal challenge, ranging from bull trout to sage grouse. In Oregon, the federal government is accepting bids to spray 30,000 acres of public lands.

• Kootenai Ripley Project

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

On May 25, the district court enjoined the Ripley timber project (including 10,854 acres of commercial logging and 238 acres of clearcutting), on the Kootenai National Forest in a lawsuit filed by the Alliance for the Wild Rockies for failing to adequately consider the effects of associated roads on grizzly bears. There would be 13 miles of permanent roads and six miles of temporary roads, as well as maintenance or reconstruction on 93 miles of existing roads.

• Wolverine listing

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

On May 26, the district court vacated the U. S. Fish and Wildlife Service’s 2020 withdrawal of a proposed rule to list wolverines as threatened or endangered.  In November, 2021, the FWS had filed a motion for voluntary remand of the withdrawal without vacatur.  Vacating the 2020 decision means the prior proposed listing rule is in effect, and wolverines receive ESA protections as a proposed species; the agency has 18 months to submit a new listing decision.  (There is a link to the opinion on this web page.)

• Flathead Forest Plan

New case:  Swan View Coalition v. Haaland (D. Mont.)

On May 31, plaintiffs filed a complaint against the U. S. Fish and Wildlife Service for failing to properly re-evaluate the effects of the Flathead National Forest’s revised land management plan on grizzly bears and bull trout.  The re-evaluation was required by the district court in its June 2021 decision discussed here and pertains to changes in road management.  (The article includes a link to the complaint.)

And Wyofile gets the trifecta for stories today, although I’m not a fan of the headline.

Judge tosses protest of grazing plan that threatens 72 grizzlies

I think, so far as I can tell, that the judge determined the grazing plan actually didn’t threaten them.  Seems like a critical distinction to me.  What interests me about these conflicts is that grizzlies are expanding their numbers and range, so it seems like it would be hard to argue that continuing the same kind of management is bad for them. But maybe not.

U.S. District Judge Nancy Freudenthal decided May 16 that officials with the Bridger-Teton National Forest and U.S. Fish and Wildlife Service followed federal environmental laws when approving the grazing plan for 8,772 cow-calf pairs and yearlings and 47 horses. Grazing on 170,643 acres at the upper end of the Green River Drift trail is unlikely to jeopardize Yellowstone Ecosystem grizzlies or the Kendall Warm Springs dace — species protected by the federal Endangered Species Act — the judge ruled.

Federal and state wildlife managers removed 35 grizzlies from the grazing allotments from 2010 to 2018 for depredating on cattle but that pace could be accelerated “in light of increased conflicts due to a growing grizzly population within the project area,” the judge’s order states. Even though grizzlies are still protected by the ESA, their comeback from the brink of extirpation has met recovery criteria since 2004, the decision states.

“This could have a beneficial effect on the [Kendall Warm Springs] dace habitat.”

JUDGE NANCY FREUDENTHAL, PARAPHRASING FEDERAL SCIENTISTS

Because of ecosystem-wide monitoring, management and limits on bear killings, the judge agreed with federal scientists that “the level of projected mortality caused by the project will not appreciably reduce the population, distribution, or reproduction of GYE grizzlies.”

Likewise, the cattle grazing at the north end of the Wind River Range in Sublette County likely won’t affect the continued existence of the dace, a species of small fish found only in 328 yards of the Kendall Warm Springs and its outflow to the Green River. Freudenthal agreed with scientists who said that driving cattle across the spring and its channel “could actually result in beneficial effects to the dace.”

Links in the headers are to documents or provide further links to them.

• Coronado NF grazing

On February 28, the Center for Biological Diversity and the Maricopa Audubon Society notified the Forest Service and Fish and Wildlife Service of their intent to sue regarding ongoing grazing on the Coronado National Forest and a Biological Opinion on that from September 30, 2021.  The species subject to ESA and allegedly affected by damage from cattle grazing in riparian areas are the yellow-billed cuckoo, northern Mexican gartersnake, Chiricahua leopard frog and Sonora chub.  Here is a long background article.

• Oregon BLM grazing

Court decision in Oregon Natural Desert Association v. Bureau of Land Management (D. Or.)

On March 29, the district court denied a motion for a temporary restraining order against the BLM’s authorization of livestock grazing on pastures containing 13 Research Natural Areas for the 2022 season without providing fencing to exclude grazing from these areas, as required by the 2015 Oregon Greater Sage-Grouse Record of Decision/Approved Resource Management Plan Amendment.  The court held that plaintiffs are unlikely to suffer irreparable harm to their use and enjoyment of the land, their interest in scientific research or to the sage-grouse population if the pastures are grazed this summer.

• Hoosier Houston South Project

Court decision in Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Indiana)

On March 30, the district court reversed and remanded the Houston South Vegetation Management and Restoration Project on the Hoosier National Forest because it failed to fully evaluate the potential effects of the Forest’s largest ever logging and burning project on the water quality of Lake Monroe (an important drinking water source).  The court also denied claims related to the range of alternatives considered and effects on endangered bats.  More information may be found in this article.

• Kilgore Gold Exploration Project

New filing in Idaho Conservation League v. U. S. Forest Service (D. Idaho)

Following a court loss in 2020, involving Yellowstone cutthroat trout (discussed here), the Caribou-Targhee National Forest approved a new plan put forward by the company involving road building and 130 drill stations for the Kilgore Gold Exploration Project.  According to this article, plaintiffs contend they should be allowed to file a supplemental complaint because the new decision essentially repeats what the court previously rejected and violates various environmental laws.

• Firefighter whistleblower

On April 1, an administrative judge for the government’s Merit Systems Protection Board found that a seasonal firefighter was entitled to a hearing regarding his claims of retaliation against him for posting on social media about what he perceived as the agency’s lax COVID-19 rules during the pandemic, which could have endangered the health of his young son.  The Forest Service agreed to award him $115,000 in back pay and remove him from “do not rehire” lists.

• Helena-Lewis and Clark Castle Mountains Project

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

On April 4, the district court reversed the Castle Mountains Project decision on the Helena-Lewis & Clark National Forest for failure to comply with the forest plan requirement for elk that recommendations from the Montana Department of Fish, Wildlife and Parks “will be followed.” (Note:  I think the Forest Service might have argued that such a standard is invalid because it defers forest plan decisions to a third party without public participation.)

The Forest misrepresented the recommendations regarding the effects of temporary roads, and failed to demonstrate that elk habitat effectiveness would be maintained or enhanced in accordance with those recommendations.   They also improperly treated the forest travel plan as a fait accompli, even though it had largely not been implemented, and therefore it could not serve as a baseline for the effects of temporary roads.  The court also held that the agency record “does not show that the agency complied with either NFMA or NEPA in relation to the undisputed decline in goshawk nesting territory.”

The court also construed the Roadless Rule’s exception that allows timber harvesting when “needed … [t]o maintain or restore the characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period.”  “Need” does not require existing conditions to be outside of the range of variability, and the exception applied to “meadows restoration” and “whitebark pine restoration” in this case.

• Path of the Pronghorn oil and gas

Court decision in Upper Green River Alliance v. U. S. Bureau of Land Management (D. Wyo.)

On April 5, the district court upheld BLM’s decision to allow Jonah Energy to continue its development of the 145,000-acre, 3,500-well Normally Pressured Lance gas field, which crosses the pronghorn migration route discussed here, and would occupy important sage-grouse habitat.  The court found that the BLM met NEPA requirements for evaluating the effects.  (Shortly afterwards, the same Department of Interior announced a $250,000 grant that will help secure a conservation easement in the wildlife corridor north of the future well-field.  This article also discusses the lawsuit.)

• Dixie Valley toad v. geothermal energy

On April 7, the U.S. Fish and Wildlife Service (“Service”) issued an emergency rule under Section 4(b)(7) of the ESA listing the Dixie Valley toad (Anaxyrus williamsi) as endangered, and on the same day the Center for Biological Diversity filed a Notice of Intent to Sue the BLM and the company behind the Dixie Meadows Geothermal Utilization Project in Nevada, being developed in the toad’s only habitat.  A prior (and still pending) lawsuit was discussed here, and this article provides additional background.

• Stanislaus NF grazing

Court decision in Central Sierra Environmental Resource Center case (9th Cir.)

As reported in this article, on April 8, the Ninth Circuit Court of Appeals affirmed the district court, and found that the Stanislaus National Forest had not violated reporting or discharge restrictions under the Clean Water Act regarding permits for their grazing allotments.  Instead, a state agency is responsible for determining Forest Service compliance.  (This case was discussed when it was filed here.)

• Sonoran Desert NM target shooting

Settlement agreement in The National Trust for Historic Preservation v. Haaland (D. Ariz.)

On April 21, the district court approved a stipulated settlement requiring BLM to re-examine its decision to allow target shooting in 90% of Sonoran Desert National Monument.  They must consider an alternative that protects several areas of the monument.  (The news release includes a link to the settlement agreement and the original complaint.)

• Arizona interstate highway

New lawsuit:  Coalition for Sonoran Desert Protection v. Federal Highway Administration (D. Ariz.)

On April 21, four conservation groups sued to stop the construction of a 280-mile long corridor for Interstate 11, including desert lands between between Saguaro National Park and Ironwood National Monument.  According to the plaintiffs, the National Park Service, U.S. Bureau of Land Management, U.S. Forest Service, and U.S. Bureau of Reclamation raised concerns that the selected route would permanently and severely harm wildlife populations and public lands.

• Alaska submerged lands

New lawsuit:  State of Alaska v. United States of America (D. Alaska)

On April 26, the State of Alaska filed a complaint in the Alaska federal district court to quiet title regarding ownership of land under navigable waters and submerged lands in Alaska.  The state is also issuing trespassing orders to federal agencies, including the Forest Service, with structures such as docks on such lands without state permits.   This article includes a counter-argument.

• Los Padres NF Reyes Peak Project

New lawsuits:  County of Ventura v. U. S. Forest Service (C.D. Cal.), City of Ojai v. U. S. Forest Service (C.D. Cal.), Los Padres Forestwatch (and 6 others) v. U. S. Forest Service (C.D. Cal.)

On April 27, three complaints were filed against the Reyes Peak Forest Health and Fuels Reduction Project in the Los Padres National Forest.  Plaintiffs object to the use of a categorical exclusion from NEPA disclosure to approve the project.  The Decision Memo states that trees between one inch and two feet in diameter will be “thinned.”  Plaintiffs are also suing the United States Fish and Wildlife Service for violating the Endangered Species Act and the APA by falsely concluding that the project would not harm California condors and their critical habitat, and the Forest Service and Secretary of Agriculture for violating the HFRA and the APA by failing to issue annual reports pertaining to the use of categorical exclusions.  The link above includes links to each of the complaints.  This article includes more information about the project, and a link to the Decision Memo.

• Daniel Boone NF Red Bird Project

On April 28, Kentucky Heartwood filed a notice of intent to sue the U.S. Forest Service to protect endangered species in the South Red Bird Wildlife Enhancement Project on the Daniel Boone National Forest.  The threatened or endangered species include snuffbox mussels, the Kentucky arrow darter and three bat species. The Forest Service says the purpose is to create more young forest habitat for deer, elk, grouse and turkey, and will leave behind seven to 20 trees per acre.  There are also concerns about damage to and possible logging of large old trees (including potential damage to a “champion” red hickory), white oak regeneration (see our recent discussion here), landslides, and invasive species.  Logging for game species at the expense of at-risk species came up here.

• Forest plan ESA consultation FOIA

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

On April 29, plaintiffs filed a complaint against the Fish and Wildlife Service and the Departments of Interior and Agriculture to seek documents under the Freedom of Information Act related to “communications within the federal agencies and with non-federal entities discussing changes or revisions to the regulatory requirements for programmatic consultations under Section 7 of the U.S. Endangered Species Act.”  This concerns legislation proposed to codify currently temporary language that exempts the Forest Service from the requirement to reassess land-management plans after a species is listed or critical habitat is designated on the affected national forest. This resulted from the “Cottonwood” litigation, we discussed here.

• Future lawsuit (for failing to provide an escape route)?

A woman who accidentally dropped her cellphone into the hole of an outhouse in the Olympic National Forest, and fell in while trying to retrieve it, had to be rescued by firefighters.