Planning

Note that the BLM is working on an amendment, at least for the Rock Springs RMP.

1.  Rich J.’s Points.  

Rich J. brought up a couple of points here last Friday, I thought worthy of note. Again, it seems like a major kerfuffle about a few RMPs where the decision was made that the Governors did not support, and, as I recall, were even considering litigating.

“(A)Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—
(i)a copy of the rule;
(ii)a concise general statement relating to the rule, including whether it is a major rule; and
(iii)the proposed effective date of the rule.

To my (perhaps excessively picayune) mind this not “very specific” at all. The argument turns on the phrase “submit to.” Does it mean presenting the plan (er – rule) to Congressional leaders on a velvet pillow with trumpets and drums? Or does it mean something less?

The bigger question, as previously discussed on this blog, is whether there is any time limit on the CRA, or whether a Congress 10,000 years from now could invoke this law to reject some executive branch action from the benighted 21st century. I understand the arguments of the people who say the CRA will apply until the sun devours our sad planet. I simply reject those arguments as inconsistent with the administration of a rational polity.

That said, I think this complaint is awesome – it is, as the chess folks say, a forking check, and (whether intentionally or not) illustrates the absurdity of this ridiculous statute.”

2. Bit’o’History re Rock Springs RMP

It appears that, at least for the Rock Springs RMP, the BLM is also pursuing an amendment. See the link above.

There was a certain amount of what I call “sharp stick in the eye” with the Rock Springs RMP decision, which is the one I followed most closely. I haven’t been following the others affected by the CRA.

How do I define “sharp stick in the eye”? In this case there are at least two factors:

a. Decision made after election of different party (in this case, decision released December 20, 2024).

b. Blowing off states and Governors. We’ve all been there, there’s a variety of choices an Admin and Gov can work out, or not, but this appears to be an intentional “sharp stick in the eye.” Decided by folks in DC calling the BLM manager, as with some other of these  end of term decisions.

4.  Forest Service Divination Strikes Out

My experience with going back in time legally was with the so-called “Gap Leases”, which had been issued in IRAs during the time period that the 2001 Rule was enjoined (by Judge Brimmer, in Wyoming).  Many people thought that they were illegitimate- or at least said so quite loudly, as if the FS had some kind of divinatory powers.  How handy that would be..the National Divination Service Center!  But if plans didn’t count as rules in times prior, and rules must go through the review process.. well, you can see the problem as Rich J. pointed out above.

5.  Why Litigate?

In my view, this is a standard “disagreement over plan content” with a “sharp-stick in the eye” overlay.  I wonder what the purpose is of this litigation.  Are groups really that attached to these specific RMPs?  Is it really worth all the effort and resources? Hopefully, again, someone can explain.

6. Ongoing Amendment Process

Seems like there is also an ongoing amendment process.

Lawsuits involving land management plans are uncommon, but we have two to look at right now.  Both also involve the interplay between land management plans and the Endangered Species Act.  A district court has decided that the Nantahala-Pisgah National Forest LMP violated the ESA’s requirements for consultation on listed species.  At the other end of the court process, the BLM has been sued (again) for a plan that allegedly fails to adequately address the greater sage-grouse, a species for which listing was prevented by agency actions to amend BLM (and Forest Service) land management plans.

• Nantahala-Pisgah NF Revised Forest Plan

Court decision in Defenders of Wildlife v. U. S. Forest Service (W. D. North Carolina)

On March 31, the district court vacated the Fish and Wildlife Service’s Biological Opinion for the revised Nantahala-Pisgah Forest Plan, which violated the Endangered Species Act with respect to four bat species.  This means the forest plan does not comply with the ESA and may not be implemented.  The court said its decision “voids authority for the Revised Forest Plan,” and it appears this means reversion to the prior plan.  The revised plan would have increased the amount of logging.  The opinion can be downloaded from the article.  There is (or was) a second lawsuit pending against the revised plan, discussed here.

The court did not agree with the plaintiffs on all counts.  In particular, it upheld the use of the national forest boundaries as the ESA action area for the forest plan decision, despite some evidence of indirect effects occurring outside of this boundary.  This affects the scope of required analysis.  The court did find the following flaws in the FWS BiOp.

The environmental baseline was inadequate because, even though forest plans are programmatic decisions and may require a “broader scope,” “Other than the general and unexplained conclusions that bats use the Forests and that the Forests contain suitable habitat for the bats, the environmental baseline offers no assessment of the conditions of the bats that are specific to the action area.” The BiOp’s environmental baseline evaluation also failed to account for the actual impacts of any past or present federal, state, or private actions in the action area.

Again recognizing that this is a programmatic decision, the court stated with regard to cumulative effects that, “Even when FWS lacks comprehensive information, it may still determine whether ‘activities in particular areas [are] fundamentally incompatible with the continued existence of the species’ and, in light of that determination, recommend constraints on certain activities in particular areas as needed” (which in the case of a forest plan could be additional protective plan components).  The BiOp also did not address the effects of the non-federal actions that had been identified in the record, and the court construed the overall lack of effort as “an improper wholesale deferral” of effects analysis to future projects.

The court also found the “no jeopardy” determination by the FWS in the BiOp to be arbitrary and capricious because it did not explain how they reached that determination in light of the conclusions in the biological assessment and other facts indicating that the species on the forest were at high risk and important to the species as a whole.  While the court also faulted the Forest Service for relying on this improper jeopardy determination, it determined that the Forest Service BA adequately provided the best available science to the FWS, even if they may have misinterpreted that science.

• BLM sage-grouse plan amendments

New lawsuit:  Montana Wildlife Federation v. Burgum (D. Montana)

On March 26, the Montana Wildlife Federation, The Wilderness Society and Defenders of Wildlife filed a lawsuit against the 2025 amendments to the Montana and Wyoming BLM resource management plans, which modified 2015 plan amendments that convinced the Fish and Wildlife Service to not list greater sage-grouse as threatened or endangered.  The BLM’s 2025 amendments make a number of changes that reduce protection that had been provided to sage-grouse in the 2015 plans. A lawsuit by different parties was discussed here.

This case will focus on oil and gas and mineral development.  According to the complaint, the BLM removed a requirement to prioritize development outside of important sage-grouse habitat, abandoned a provision of the prior plans calling for a mineral withdrawal that would have prevented mining on 10 million acres of the most important sage-grouse habitat, and weakened numerous minimization and mitigation measures.

The plaintiffs allege violations of FLPMA, NEPA and the APA.  The FLPMA requirement is to manage for sustained yield of wildlife, and the Fish and Wildlife Service had previously said the conservation measures removed were necessary to prevent further decline and likely listing under the Endangered Species Act.  Alleged violations of NEPA involve failure to acknowledge, based on the best available science, that these amendments would be less protective of sage-grouse and to disclose those adverse effects, and failure to properly evaluate the loss of mitigation measures that were already proving inadequate.  The case also will address the effects of the One Big Beautiful Bill Act (which was adopted between the final EIS and the ROD for these amendments) on BLM’s discretion to not lease sage-grouse habitat for oil and gas, and the effects on sage-grouse of claimed likely additional development that would be allowed.  The article includes a link to the complaint.

• Background – litigation in sage-grouse habitat

Court decision in  Montana Wildlife Federation v. Haaland (9^th Cir.)

(I apparently missed this decision at the time – which points out that my search system isn’t perfect, and if someone feels like I missed something important to federal lands management, they should let me know.)

On January 17, 2025, the Ninth Circuit Court of Appeals enjoined several leases in sage-grouse habitat conducted under the 2015 sage-grouse plan amendments in response to two separate lawsuits.  The Montana Wildlife Federation case was heard in the Montana district court and the Western Watersheds Project case originated in Idaho (though these appeals to the Ninth Circuit did not involve leases in either state).

The circuit court determined that a BLM “instructional memo,” which interpreted the 2015 plan to require prioritization of oil and gas permits outside of sage-grouse habitat only when there was a backlog in processing expressions of interest, was plainly inconsistent with the 2015 plan (which had no such qualifier) because “IM 2018-026 prioritizes administrative efficiency over the 2015 Plan’s stated purpose of protecting sage-grouse habitat.”  The court concluded, “The agency thus failed to draw a “rational connection” between the backlog requirement and the substantive, conservation-oriented goals of the 2015 Plan.”  While the court did not invalidate the memo, it found that the June 2018 Wyoming lease sales (addressed by the Montana court), which applied the interpretation in the memo, violated FLPMA because they did not conform to the management plans.  The court found this substantive violation of FLPMA warranted vacating the leases.

In the Idaho case, the 9^th Circuit concluded that BLM violated both FLPMA and NEPA with respect to five lease sales (677 leases) when it eliminated in some instances and severely shortened in others the various public participation periods without providing an adequate explanation for its change in policy.  The court stated, “BLM failed entirely to acknowledge the potential costs of reducing public participation in leasing decisions, including that shortening the participation opportunity might lead to insufficient consideration of the environmental impacts of its actions.”  The court found this procedural violation to be less severe, and enjoined the relevant sales without vacating the leases in Nevada, Wyoming and Utah.

FOREST PLANS

There are not a lot of lawsuits involving forest plans, but oddly there has been news about three of them (and maybe four) in the last couple of months.  I’ve separated those out for this summary, partly because I thought the first one was worth covering at length for any planning nerds left out there.

• Rio Grande NF revised forest plan:  Rio Grande revision

Court decision in San Luis Valley Ecosystem Council v. Dallas (D. Colorado)

(Thanks to Susan Jane Brown for filling in this gap in my newsfeed.)

On December 13, the district court upheld the Rio Grande’s revised forest plan against challenges based on its treatment of the Canada lynx and the Uncompahgre fritillary butterfly (UFB).  Both species are federally listed as threatened under the ESA, but the claims were related to compliance with NFMA and NEPA.

Plaintiffs argued that the revised plan did not comply with the requirement of the Planning Rule for the UFB that plan components “provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species …” 36 C.F.R § 219.9(b)(1).  Key ecological conditions necessary for the UFB are large patches of snow willow located above 12,000 feet, and alleged threats to the UFB are from illegal collection, recreation, livestock grazing, and climate change.  Plaintiffs sought specific protection from these threats for colony sites and potential recovery areas.  The court conducted a granular review of the relevant forest plan components (and so will I).

It focused first on species-specific plan components that had been included in the draft plan, but not in the final plan, and plaintiffs believed this weakened the protection for these species beyond what NFMA requires.  The court found that these three plan components “may have been condensed into other components” in the final plan.  The court held, “Petitioners do not explain why condensing these three components into other components or removing them for redundancy was ‘a clear error of judgment’ sufficient to overcome the presumption of validity attaching to the agency’s action.

The court characterized a second argument as, “essentially that the final plan should have been identical to the draft plan because “neither the status review or Biological Assessment contain any different information than what was before the agency when it published the [draft] EIS.”  The court could find no “record evidence suggesting the eliminated species-specific components would have provided for butterfly recovery in a way that the remaining ecological plan components would not.”

The court then found that the discussion of the effects of other plan components (not specific to these species) showed they would meet the needs of these species, focusing on four desired conditions and one guideline.  The court found that the desired condition of “[m]aintain[ing] or improv[ing] habitat conditions that contribute to either stability or recovery” met the Planning Rule requirement to be “specific.”  The court added, “It certainly seems possible to measure whether the snow willow population in that area is ‘maintaining or improving,'” and that plaintiffs, “do not, however, provide any authority indicating what level of detail is required; nor was the Court able to locate caselaw defining that requirement.”

The court also found that two desired conditions for different “species of conservation concern” need not be disregarded because they may benefit the UFB even though they are not directed at that species.  Plaintiffs argued that a desired condition for connectivity was insufficient, to which the court responded that, “Petitioners point to no authority suggesting that desired conditions must be self-executing, or that each component must simultaneously address all possible threats to a given species.

With regard to the one guideline, the court discussed the programmatic nature of forest plans, and held:

“Petitioners do not provide any authority to support their assertion that the guideline insufficiently constrains the agency’s future management actions. They seem to believe that the 2020 Plan must be an exhaustive enumeration of all requirements for future site-specific actions….  The Court is thus unpersuaded by Petitioners’ request to, in effect, superimpose the requirements for approving site-specific projects onto its review of the more general Forest Plan at issue here.”

Finally, with regard to the adequacy of the ecosystem components leading to no need for species-specific plan components, “the Court finds the USFS exercised its prerogative to determine whether fine-filter components were necessary to provide for the key ecological conditions to contribute to the recovery of the UFB.”

As for NEPA, the court found that analyzing the effects of the winter motorized recreation plan components on lynx without first updating the 2018 lynx map for changes in snow compaction levels was not arbitrary or capricious.  While the court observed that plaintiff’s argument seemed reasonable, it said they didn’t do enough to overcome the Forest Service position that there were “no significant changes in the compaction routes and noted that it was committed to ‘remapping of compaction and the overlap with associated LAUs . . . as soon as practical.’”  The court held, “it is clear from the record that the USFS considered and applied what it considered to be the best available science…” and plaintiff’s argument was “more of a methodological quibble.”  For the UFB, the court referred to its analysis for the NFMA claim as determinative of the NEPA claim and found that “the analysis of the UFB” was adequate under NEPA.

Finally, plaintiffs claimed that the Forest should have considered an alternative that included two Special Interest Areas.  The court rejected an argument by the Forest Service that they could reject such an alternative because that would keep them from providing other multiple-uses.  However, the court then decided that these alternatives were not “significantly distinguishable from alternatives already considered.”  With regard to one of the areas, the court faulted plaintiffs for not showing that an existing alternative “would result in significantly different regulatory requirements.”  For the other area, the court found that the proposed Special Interest Area would either provide protection for lynx that already existed in the no-action alternative or if not, “would not have promoted the objectives of balancing competing interests in the plan area.”  Therefore, it was properly eliminated from detailed study as an alternative.

For those looking for insights into how the Supreme Court’s decision in Loper Bright could affect the deference that courts will give to federal land management agencies, that opinion was not briefed in this case, but the district court explained in a footnote: “But this Court has likewise found no basis to conclude it affects the analysis here, which—though it implicates the APA—does not involve any disputed statutory construction.”  However, with regard to the analysis of effects on wildlife species, “where that analysis ‘requires a high degree of technical expertise,’ the Court properly ‘defer[s] to the informed discretion of the responsible agency.’”  Overall, “a presumption of validity attaches to agency action.”

(For what it’s worth, I found a number of flaws in the court’s reasoning that I think could be worth an appeal, but I understand plaintiffs are not going to do that.)

• Flathead NF revised forest plan

Government drops its appeal in Swan View Coalition v. Haaland (9^th Cir.)

On February 20, the circuit court dismissed this case against the Flathead National Forest after the defendants opted not to appeal a lower court’s determination that the Forest Service violated the Endangered Species Act because it failed to adequately consider the effects on grizzly bears and bull trout of closed roads and unauthorized use of roads when it adopted its revised forest plan (discussed here).  Here is the order.

• Helena-Lewis and Clark NF revised forest plan

Court decision in Helena Hunters and Anglers Association v. Moore (9^th Circuit)

On February 25, the Ninth Circuit affirmed the district court decision (discussed here) to uphold the ESA consultation on the revised forest plan for the Helena-Lewis and Clark National Forest.  The circuit court addressed only the question of how the Fish and Wildlife Service must analyze the “removal” of ten standards for big game that were in the original plan and also protected grizzly bears.  It held:

“FWS was not required to spell out, separately and specifically, all changes between the 1986 Plan and the 2021 Plan and their incremental effects on grizzly bears. Instead, the text of the ESA and its implementing regulations requires a more wholistic approach that was satisfied here…  The analysis by FWS therefore captured the total net effect of implementing the entire forest plan.”

• Helena-Lewis & Clark timber project (and forest plan?)

New lawsuit:  Native Ecosystems Council v. Webber (D. Montana)

On February 18, the Alliance for the Wild Rockies, Native Ecosystems Council and Council on Fish and Wildlife sued the Forest Service over its approval of the Wood Duck Project on the Helena-Lewis and Clark National Forest.  It calls for 42 acres of clearcutting, 936 acres of additional commercial logging, and 263 acres of other logging in an area of widespread tree mortality.  Plaintiffs state that 195 acres is in old growth, and the area is important to grizzly bears and big game, and they allege violations of NEPA and NFMA.  According the plaintiffs, “The lawsuit raises challenges against the project, and also against the Forest Service’s failure to implement strong protections for public land elk habitat, grizzly bear travel corridors, and old growth forest across the Helena – Lewis and Clark National Forest.”  That sounds like they could also be initiating a lawsuit against the revised forest plan.  (I have not seen the complaint.)