March litigation went out like a lion.
FOREST SERVICE
Settlement in Oregon Wild v. U. S. Forest Service (D. Oregon)
In January, plaintiffs reached a settlement with the Forest Service regarding the Grasshopper Project on the Mt. Hood National Forest. The Forest Service agreed to drop certain units with old-growth characteristics, limit logging in others to better protect such characteristics, and agreed to require diameter limits throughout the project area, something the EA and FONSI/Decision Notice did not include. The press release includes a link to the settlement agreement.
Oral arguments held in March
Standing Trees filed suit in U.S. District Court for New Hampshire last May, challenging the Forest Service’s decisions to approve the Peabody West Integrated Resource Project and the Tarleton Integrated Resource Project on the White Mountain National Forest. The plaintiff argues that the Forest Service violated NEPA because the agency did not analyze alternatives that would log less and failed to look hard at the impacts on water quality, forest health, scenery, recreation, and the northern long-eared bat. The two projects would authorize nearly 3,000 acres of logging, 12 miles of related road construction and reconstruction in an inventoried roadless area and potential old forest habitat, as well as recreation improvements.
New lawsuit: WildEarth Guardians v. U. S. Forest Service (D. D.C.)
On March 25, the plaintiff sought to compel release of records pertaining to the “timber targets” established for the Pacific Northwest Region of the Forest Service following an increase in national timber targets announced in December, 2023. The plaintiff alleges that a proposed amendment to the Northwest Forest Plan “would weaken longstanding protections for wildlife in order to increase logging to meet those higher timber targets.” While about half of identified records have been provided, nearly 6,000 pages of information were withheld. The press release provides a link to the complaint.
Court decision in Friends of the Clearwater v. Probert (D. Idaho)
On March 26, the district court dissolved a 2022 injunction imposed on the End of the World and Hungry Ridge logging projects (discussed here) on the Nez Perce-Clearwater National Forest after the Forest Service prepared an EIS that adequately addressed each of the Court’s concerns. (The opinion can be downloaded from this site.)
New lawsuit: Mountain True v. U. S. Forest Service (W.D. N. Carolina)
This lawsuit was filed on March 27, and is discussed here, where a link to the complaint is provided. The above link is to local reporting.
Magistrate’s recommendation in Center for Biological Diversity v. U. S. Forest Service and Gallatin Wildlife Association v. Jedra (D. Montana)
On March 27, in two consolidated cases involving several wildlife and ecosystem protection advocacy groups, the U. S. Magistrate identified deficiencies in an environmental assessment for a plan for six livestock grazing allotments north of Yellowstone National Park on the Custer-Gallatin National Forest. According to a plaintiff, “The Court ruled in our favor on four out of five of our National Environmental Policy Act claims including: (1) failure to analyze the effects of putting cattle on the allotments early in the spring; (2) failure to analyze habitat connectivity, which is an important factor for grizzlies; (3) failure to analyze the cumulative effects related to activities on private lands in the area; and (4) failure to prepare an Environmental Impact Statement.”
Court decision in Center for Biological Diversity v. U. S. Forest Service (D. D.C.)
On March 28, the district court held that the Forest Service violated the Freedom of Information Act by redacting information that should have been publicly disclosed in appraisals of a 2014 land exchange authorized by Congress to allow mining on lands found on the Tonto National Forest. The court held that, “the record shows the Forest Service did not conduct that analysis closely enough,” and that, “the Forest Service must conduct another line-by-line review of the withheld information to ensure that it has released all reasonably segregable non-exempt information.” This article includes a link to the court’s opinion. Earlier litigation regarding this area, known as Oak Flats, was discussed here.
Administrative record ruling in Kentucky Heartwood v. U. S. Forest Service (E.D. Kentucky)
On March 28, the district court denied plaintiff’s motions to supplement the administrative record with extra-record documents and discovery related to the South Redbird Wildlife Habitat Improvement Project (discussed here). The court found plaintiffs had not demonstrated the bad faith necessary to compel inclusion of a briefing paper and “timber target meeting notes” in the record. It also declined to compel discovery of records documenting the Forest Service’s decision not to act on plaintiff’s supplemental information asserted in requesting a Supplemental Environmental Impact Statement (which the Forest Service had not responded to).
Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (D. Idaho)
On March 31, the district court held that the Hanna Flats Good Neighbor Authority Project’s implementation will violate the Idaho Panhandle National Forest’s forest plan Access Amendment requirements for total and open road mileage for grizzly bears. It also concluded that the mileage baseline conditions identified in the Access Amendment and IPNF Forest Plan were not properly changed in 2021 using the “administrative change” process instead of the plan amendment process. This a continuation of prior litigation, most recently described here.
The Project area open road mileage currently exceeds the amount required by the forest plan, and the project will reduce it, but not enough to meet the requirement. The court found that to determine consistency with the forest plan, “a project’s assessment against existing conditions rather than the Access Amendment’s baseline conditions is a false comparison.” It held that, “the Project violates the Access Amendment because it exceeds the Access Amendment’s baseline conditions…, and “the fact that the Project might reduce road mileage conditions as compared to existing conditions does not change the analysis.”
The administrative change increased the baseline road miles amount by including previously unidentified roads, so that the post-Project mileage became less than the corrected Access Amendment baseline conditions required by the forest plan. However, the court held that by changing the baseline requirement, “the USFS is not engaging in ‘corrections of clerical errors’ addressable by an administrative change,” and “Changing baseline mileage figures materially changes the 2015 IPNF Forest Plan and therefore requires a formal plan amendment.” The fact that actual road miles would be reduced by the Project did, however, influence the court’s decision to remand the Project decision without vacatur. Plaintiff’s perspectives are provided here.
Court decision in Friends of the Big Bear Valley v. U. S. Forest Service (C.D. California)
On March 31, the district court upheld the North Big Bear Landscape Restoration Project in the San Bernardino National Forest. The court rejected claims that the Forest Service ignored credible scientific evidence that: (1) fuel mitigation through the removal of trees could increase the severity of forest fires; (2) tree removal more than 100 feet from structures cannot effectively protect structures from ignition; and (3) Project area forests are not any denser than they were 100 years ago.
While plaintiffs pointed to studies and an agency analysis that showed thinning creates drier and windier conditions, the court said that these viewpoints were contrary to the scientific consensus, and the effects of this project are not controversial so an EIS was not required. The court held:
“The Forest Service discussed its evidence, as well as the opposing viewpoints raised by Hanson, and concluded that the scientific consensus was thinning combined with prescribed burning was an effective method for reducing the severity of forest fires. The Forest Service explained that Hanson’s studies were insufficient to challenge the scientific consensus and a range of credible scientists have significant concerns about the quality and integrity of Hanson’s and some of his colleagues’ work.”
The court also held that the project purpose did not involve home ignition so the Forest Service was not obligated to evaluate the effectiveness of this project for that outcome, but it followed from the above that there would be benefits to adjacent communities. With regard to forest density, the administrative record showed that the Forest Service “considered Hanson’s assertion and, in a memorandum, explained why it concluded Hanson’s findings were faulty,” (including the role of basal area in them) and that the status of forest density is also not controversial.
We have previously discussed this project here.
BLM
Court decision in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)
On March 31, Judge Aiken for the district court fully adopted Magistrate Judge Clarke’s Findings and Recommendations that BLM Medford District violated FLPMA and NEPA in authorizing the Integrated Vegetation Management Program. BLM authorized a program that included extensive logging in Late Successional Reserves (LSRs), but its 2016 Southwestern Oregon Resource Management Plan requires that any logging in LSRs may not delay spotted owl habitat development by more than 20 years compared to no logging. BLM could not show that to be true for some of the prescriptions, and therefore they were inconsistent with the RMP, and the Program violated FLPMA. Judge Aiken also agreed with Judge Clarke that BLM did not adequately support its decision to not prepare an EIS for the Program, violating NEPA. The court upheld the recreation portion of the Program as consistent with the RMP. The article includes links to both the recommendations and the order.
One of the NEPA issues in this case was the same one addressed in the San Bernardino case above – whether there is scientific controversy about the effects of thinning on fire risk that should require discussion in an EIS. Here the court reached the opposite conclusion:
“The controversy inherent in the IVM Program’s plans remains unresolved by BLM’s response. In simply electing its chosen alternative without fully exploring the conflicting research on the issue through a formal EIS, BLM effectively reduces its findings to only the positive outcomes, while discounting the coinciding negative possibility that treatments would exacerbate forest fires.”
This case also involved two timber sale projects (Penn Butte and Late Mungers) that would implement the IVM Program. While the Program stated an intent for site-specific analysis to occur with subsequent projects, these projects attempted to instead tier to the RMP EIS (with a “determination of NEPA adequacy”), which prompted the court to say “the style of tiering employed by BLM in this context effectively allows the agency to avoid completing any site-specific analysis under the guise of passing it off as already considered.” The precedential effect of allowing this to occur at the project-level was another reason an EIS should have been prepared for the Program.
Court decision in Cascadia Wildlands v. Adcock (D. Oregon)
Also on March 31, Judge Aiken ruled partially in Cascadia Wildlands’ favor on NEPA claims it brought against the BLM regarding the N126 Project west of Eugene (Siuslaw Field Office). The N126 Project targets Late Successional Reserve stands surrounding intermingled Harvest Land Base stands. Judge Aiken ruled that BLM had not taken a hard look at impacts of sediment delivery from roads to streams, and failed to consider the cumulative impacts of a nearby Forest Service logging project. Further, BLM failed to adequately support its decision to not prepare an EIS, particularly regarding sediment, cumulative impacts, and impacts to ESA-listed marbled murrelets from road construction.
Settlement in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)
In January, the BLM also settled a case involving the Rogue Gold Project. This project included a nearly identical FLPMA claim as the IVM case: BLM authorized LSR logging without demonstrating such logging would not delay spotted owl habitat by more than 20 years compared to no logging. After plaintiffs filed suit, BLM amended its project decision to drop such treatments. BLM agreed not to authorize such treatments without further environmental analysis and the parties settled.
ENDANGERED SPECIES
Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)
On March 12, the district court established deadlines for the U.S. Fish and Wildlife Service to complete biological opinions assessing the effects of five pesticides approved by the EPA on threatened and endangered species. The consultation for chlorpyrifos and diazinon began in 2017 and for carbaryl, atrazine and simazine more recently. The court ordered completions over a three-year period with dates requested by the Fish and Wildlife Service (starting with carbaryl, due a few days ago.)
Court decision in Western Watersheds Project v. Haaland (D. Nevada)
On March 25, the district court found that trespass cattle grazing on a BLM allotment and development of solar energy sites on federal lands, where such actions had been assumed to not occur, could be considered new information requiring reinitiation of ESA consultation on the effects of the Clark County (NV) Multi-Species Habitat Conservation Plan on Mohave desert tortoises, since the information became available within the 6-year statute of limitations period. However, the court also dismissed a claim that the HCP became immediately invalid when the criteria for reinitiation were met. The court will proceed to address the merits of the case.
New lawsuit: Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.)
On March 27, plaintiffs sued the Fish and Wildlife Service over failure to issue final rules on their petition to list the Kern Canyon slender salamander and relictual slender salamander after they were proposed for listing as endangered, in violation of the Endangered Species Act’s one-year deadline. The species’ habitat is found on and near the Sequoia National Forest, and plaintiffs claim the salamanders’ greatest threats include grazing, recreation, fire and climate change, leading to habitat loss. The article includes a link to the complaint.
Court decision in Kansas Natural Resource Coalition v. U. S. Fish and Wildlife Service (W.D. Texas)
On March 29, the district court vacated the Endangered Species Act special 4(d) rule regarding prohibited incidental take for the northern distinct population segment of the lesser prairie-chicken. This species doesn’t occur on NFS or BLM lands, but the ruling may affect listings of species that do. The district court held that ESA section 4(d) requires the Fish and Wildlife Service to make a determination for every proposed prohibition promulgated under ESA section 4(d) that the prohibition is “necessary or desirable for the conservation of the species” (quoting language from ESA), and that this determination must consider economic impacts.
Court decision in Center for Biological Diversity v. Haaland (D. Arizona)
On March 31, the district court upheld a rule updating the section 10(j) nonessential experimental population designation of Mexican wolves. The court’s conclusion:
“FWS considered numerous model scenarios under the Miller PVA (Population Viability Analysis) and based its 2022 10(j) Rule on the best available science. None of the purported oversights noted by Plaintiffs render the Rule itself unreasonable. Additionally, FWS took a hard look at the environmental impacts of the 2022 10(j) Rule and considered a reasonable range of alternatives (thus complying with NEPA).”
The substance of the dispute revolved around a decision to rely on a population of wolves in Mexico rather than expand the range in the U. S. north of I-40. The court also upheld the determination that the U. S. population was “nonessential,” largely in light of a captive breeding program.
New lawsuit: American Farm Bureau Federation v. U. S. Fish and Wildlife Service (D. D.C.)
On March 31, a coalition of seven industry groups representing farming, mining, and oil entities sued, challenging several provisions of the former administration’s 2024 regulations under the Endangered Species Act. The groups call for a return to 2019 Trump-era regulations. The factsheet includes a link to the complaint.
OTHER
Court decision in Iron Bar Holdings, LLC v. Cape (10th Circuit)
On March 18, in a suit brought by a private landowner, the circuit court upheld the district court’s ruling that hunters were within their rights to step over the airspace of private land as they accessed parcels of federal public land. The court interpreted the 1885 Unlawful Inclosures Act, which prohibits landowners from putting up barriers to otherwise accessible public lands, to mean a landowner can’t “implement a program which has the effect of ‘deny(ing) access to (federal) public lands for lawful purposes.’” The article includes a link to the opinion. The western policy and conservation manager for Backcountry Hunters and Anglers pointed out that in states outside the 10th Circuit the ruling is “persuasive” and could help bolster the case for corner crossing, but isn’t legally binding.
New lawsuit: National Treasury Employees Union v. Trump (D. D.C.)
On March 31, the union filed a lawsuit against an executive order that instructs 18 federal agencies to end collective bargaining with federal unions because they were determined to have a “primary function” in “intelligence, counterintelligence, investigative, or national security work” – including the BLM and the EPA. This would make it easier to fire employees. The article includes a link to the complaint and the Executive Order. This article lists the agencies included (the Forest Service is not mentioned).
