In Yellowstone to Uintas Connection v. Marten, various environmental groups (Petitioners) challenged the Forest Service’s decision to proceed with the Pintler Face Project (Project) without properly considering the 2020 remapping and reduction of Lynx habitat in the area. The Project includes 3,934 acres for timber harvest, including thinning, clearcutting, and aspen harvest, and 7,765 acres of non-commercial vegetation treatments, including thinning, understory burn and cutting, and burning of grasses, shrubs, and in riparian areas. The Project is located in a Lynx Analysis Unit (LAU) that was remapped after the Project’s Environmental Analysis (EA) was published. After work was underway on the Project, Petitioners sued and moved for preliminary injunction asserting that (1) the Forest Service should have prepared a National Environmental Policy Act (NEPA) analysis, either an EA or an Environmental Impact Statement (EIS), when it remapped and reduced threatened lynx habitat on National Forest land; (2) the Forest Service should not have tiered the Project EA and Finding of No Significant Impact (FONSI) to the 2020 remapping and removal of lynx habitat; (3) the Forest Service should have prepared an EIS for the Project; and (4) the Forest Service failed to adequately address the environmental baseline and effects on grizzly bear populations. In July 2024, a District of Montana court preliminarily enjoined the Project’s non-commercial vegetation management activities but denied a request to enjoin commercial timber harvesting activities, finding the harm to local economies outweighed the potential environmental harm. Although the court noted that the Forest Service should have prepared an EA with public involvement when it did the remapping and that irreparable environmental harm could result, it found the region’s dependency on the logging industry along with substantial investments made by the involved companies weighed against an injunction. It also found the parties waited a long time to file their complaint. In late 2024, Petitioners filed an amended complaint, and litigation is ongoing.
In Swan View Coalition v. Haaland, environmental plaintiffs challenged the U.S. Fish and Wildlife Service’s (FWS) 2022 Biological Opinion (BiOp) for the Flathead National Forest’s 2018 Revised Land Management Plan (LMP). Plaintiffs alleged that FWS and the Forest Service violated the Endangered Species Act by concluding that the LMP will not jeopardize the continued existence of grizzly bears and bull trout or adversely modify bull trout’s critical habitat. The District of Montana found FWS’s BiOp was arbitrary and capricious for three reasons. First, FWS did not address or adequately explain why unauthorized motorized use was excluded from road density calculations. The court reasoned that this decision needed strong support because LMPs cover larger areas and span a longer time than individual projects. Second, FWS’s reasoning for excluding impassable roads from road density calculations was contrary to the evidence. Third, FWS did not adequately address the effects of culverts remaining on impassable roads after previously requiring them to be removed. The court ultimately remanded the relevant portions of the BiOp to the agencies without vacatur. The federal government defendants appealed to the Ninth Circuit, but the appeal was voluntarily dismissed in February 2005.
In Klamath Forest Alliance v. U.S. Fish and Wildlife Service, environmental plaintiffs sued FWS in the Eastern District of California, challenging FWS’s BiOp for the South Fork Sacramento Public Safety and Forest Restoration project in the Shasta-Trinity National Forest. Plaintiffs allege the BiOp is arbitrary and capricious because it shows the project will take up to 12 northern spotted owls, yet FWS concluded the project will not jeopardize the continued existence of the northern spotted owl. Summary judgment motion practice is tentatively scheduled for 2025.
In Center for Biological Diversity v. Strommen, three pro-trapping organizations challenged a consent decree between a conservation group and the state of Minnesota that protects the Canadian lynx from incidental harm caused by trapping. Over the objections of the three pro-trapping organizations, the consent decree imposes restrictions on trapping in the northeast corner of Minnesota. The Eighth Circuit upheld the consent decree as procedurally fair, substantively reasonable, and consistent with state law. First, the court reasoned that the consent decree was procedurally fair because the district court had allowed the pro-trapping organizations to intervene and given them ample opportunity to raise their arguments. Second, the court held the consent decree was substantively reasonable because it was a fair compromise, eliminating “particularly risky” trapping practices that threatened the Canadian lynx without outlawing trapping in the area altogether. Third, the court found that the state laws Minnesota followed to implement the new trapping regulations complied with Minnesota state law regarding emergency rulemaking. Thus, the court upheld the consent decree, though it noted that “[n]othing prevents [the pro-trapping organizations] from challenging the validity of the new [trapping] regulations in a separate state-court action,” under Minnesota state law that allows Minnesota courts to set aside agency decisions that are “arbitrary and capricious.”
In Hahnenkamm, LLC v. United States, the Forest Service challenged a Federal Court of Claims decision holding the Forest Service breached a land purchase contract by failing to provide an appraisal of the land that was both independent and in compliance with the Uniform Appraisal Standards for Federal Land Acquisitions (the “Yellow Book”). Although the Forest Service conceded that the appraisal was deficient and in breach of the contract, it argued that, given the seller’s ample opportunity to review and investigate the appraisal, the seller could not have reasonably relied on the Forest Service’s representation that the appraisal was both independent and Yellow Book-compliant. The Federal Circuit agreed, holding that, as a matter of law, the seller could not have reasonably relied on the representation that the appraisal was independent because the seller knew the Forest Service had been involved with and influenced the appraisal. But the question of whether the seller could have reasonably relied on the representation that the appraisal was Yellow Book-compliant was remanded to the Federal Court of Claims for the court to determine whether the seller relied on the Forest Service’s representations and its reliance was reasonable given that statements of value and opinion typically cannot be relied upon and in light of the seller’s knowledge of the facts in the appraisal and its own investigation of Yellow Book standards.
In Friends of the Inyo v. U.S. Forest Service, several environmental groups challenged the Forest Service’s approval of a mineral exploration project in the Inyo National Forest. The Forest Service bypassed NEPA review for the Long Valley Exploration Drilling Project (Project) by applying two separate categorical exclusions, CE-6, which allows timber stand or wildlife habitat improvement activities that do not use herbicides or require more than 1 mile of low standard road construction, and CE-8, which allows certain short-term mineral, energy, or geophysical investigations and their incidental support activities. Initially, the Forest Service told the Project Owners that the Project would require an EA, but after the owners wrote the Forest Service about getting a quicker approval timeline, the Forest Service told them it was “trying to fit the [P]roject into a categorical exclusion.” That day, it informed the owners that the Project would be fast tracked via CE-8. When public comments expressed concerns that some of the Project reclamation activities, like monitoring and re-seeding, could continue beyond one year, the Forest Service added CE-6 to cover the minor rehabilitation activities. As approved, the Project was divided into two phases—Phase one, covered by CE-8, for one year of mineral exploration, and Phase two, covered by CE-6, for up to three years of revegetation and reclamation. The environmental groups challenged whether the Forest Service could apply two CEs to a single project, but the district court disagreed. On appeal, the Ninth Circuit reversed. First it held that the two-phase project was a single proposed action because Forest Service regulations prohibit artificially bifurcating reclamation from a proposed plan of operations, and all parties treated the exploration and reclamation as one proposal. Second, neither CE-6 nor CE-8 alone could cover the entirety (both phases) of the proposed action; therefore, neither CE could be applied to the Project. Third, the text, history, structure, and purpose of the regulations indicates that a single proposed action must fall within a single category for it to be categorically excluded, i.e., the regulations could not be stacked or combined. In a dissenting opinion, Judge Bumatay wrote that the error of combining the CEs would be harmless as the project would disturb less than an acre of land and no one has identified any significant impact on the environment.
Updates: In Los Padres ForestWatch v. U.S. Forest Service, the Ninth Circuit affirmed the Central District of California, holding that the Forest Service’s revised decision memo for the harvest of 21-inch trees in the Tecuya Ridge Project was rational and not inconsistent with the Roadless Rule. The explanation noted that trees of 21-inches dbh were the dominant species in the project area and that tree species in the area only have a growth potential of 60-90 inches dbh. In related cases American Forest Resource Council v. United States and Murphy v. Biden, the Supreme Court denied petitions for writ of certiorari in 2024, leaving intact the Ninth Circuit and the D.C. Circuit decisions that upheld the expansion of the Cascade Siskiyou National Monument under the Antiquities Act. In Oregon Wild v. U.S. Forest Service, the Ninth Circuit affirmed an Oregon District Court’s conclusion that the “timber stand and/or wildlife habitat improvement” categorical exclusion (CE-6) has no acreage limit, allowing the South Warner, Bear Wallow, and Baby Bear projects to move forward with commercial thinning of 3,000 to 16,000 acres.
In response to President Biden’s Executive Order 14072, Strengthening the Nation’s Forests, Communities, and Local Economies, in December 2023 the Forest Service announced its intention to amend all 128 National Forest land and resource management plans to incorporate consistent direction for the conservation and management of mature and old growth forests across the National Forest System (NFS). To facilitate the National Old Growth Amendment (NOGA) the Forest Service released an updated Inventory Report in May 2024 followed by Analysis of Threats in June 2024. In late June 2024, the Forest Service released a draft EIS for NOGA that included a no action alternative plus 3 action alternatives that proposed differing levels of protections for old growth forests as defined by each National Forest. The action alternatives required the Forest Service to incorporate Indigenous Knowledge into the stewardship of older forests. After taking public comment, engaging in Tribal Consultation, and working with cooperating agencies, the Forest Service declined to move forward with the NOGA and instead incorporated lessons and information learned from the amendment process into field guidance issued by Forest Service Chief Randy Moore for consideration by individual national forests as they revise their forest plans.
In December 2023, after years of prework – including the release of a Bioregional Assessment and Science Synthesis and extensive public engagement – the Forest Service announced its intention to develop a climate-smart Northwest Forest Plan Amendment to the landmark 1994 Northwest Forest Plan (NFP), which directs forest management within the range of the northern spotted owl on nineteen national forests in western Oregon, western Washington, and northwest California. In November 2024, the Forest Service released the draft EIS for the Amendment for a 120-day comment period. The Amendment addresses issues including incorporating Indigenous Knowledge and perspectives in land management (which were excluded from the original 1994 NFP), mature and old growth forest conservation, forest stewardship, wildfire risk reduction, climate change adaptation and mitigation, carbon storage, community economic wellbeing, and adaptive management. The NFP Amendment will not change underlying aspects of the NFP including the Aquatic Conservation Strategy, existing land use allocations, or protections for northern spotted owls and marbled murrelets. The Forest Service intends to finalize the Amendment by the end of 2025.
In the fall of 2024, hurricanes Helene and Milton impacted extensive portions of Florida, Georgia, Alabama, South Carolina, Tennessee, Virginia and North Carolina. Several national forests in Region 8 of the National Forest System, including the Ocala, George Washington, Jefferson, Nantahala, Pisgah, and Sumter National Forests, suffered extensive hurricane-related damage prompting the closure of some of these Forests in their entirety. In response, the Forest Service is using its emergency action authority and other expedited procedures from the Bipartisan Infrastructure Law to rebuild pre-disaster conditions and prevent future flooding. This includes restoring utilities like water, sewer, power and internet, completing landslide repairs, constructing erosion controls, and replacing or repairing bridges, culverts, trails and developed recreation sites. Emergency salvage of downed trees will also occur in areas impacted by the hurricane and subsequent tornados. Even with this expedited recovery, ecological and socioeconomic recovery from Helene and Milton is expected take many years and perhaps longer.
In Citizens for Balanced Use v. Fish and Wildlife Commission, the owner of a mineral estate beneath a portion of a new 33,000-acre conservation easement—Fish Wildlife and Parks (FWP) Montana Great Outdoors Project, Phase 1 (MTGO-1)—and a Montana non-profit challenged and sought to restrain approval of the easement. MTGO-1 is a 33,000-acre easement between Kalispell and Libby Montana where development is restricted, public access is guaranteed, and timber harvesting is allowed. Plaintiffs alleged the easement would impede mineral right holder exploration, recovery, and development of minerals on the land. The lower court denied plaintiffs’ motion for a preliminary injunction, and plaintiff petitioned the Montana Supreme Court for review. Prior to the Montana Supreme Court’s consideration, the Land Board approved MTGO-1 on condition that it include amended language explicitly guaranteeing that the easement would not encumber the interests of mineral rights holders. Plaintiffs then voluntarily dismissed the petition, and the Montana Supreme Court dismissed the case with prejudice.
In Jewell School District v. Mukumoto, an Oregon judge dismissed a lawsuit seeking to challenge the Oregon Department of Forestry’s (ODF’s) Western Oregon State Forest Habitat Conservation Plan (HCP) on standing grounds, ruling that the court lacked subject matter jurisdiction over the case. The HCP, implemented through the 2010 State Forest Management Plan (FMP), covers all state forests lands managed by the ODF west of the Cascade Rage and contains a 70-year conservation strategy designed to avoid, minimize, and mitigate the effects of forest management activities on 17 listed species under the Endangered Species Act. On average, the HCP is poised to reduce logging by twenty percent across the 630,000 acres of covered forests, which include Tillamook State Forest, Clatsop State Forest, and Santiam State Forest. The plaintiff, a school district funded entirely from state forest timber harvests that occur within its borders, alleged that the FMP provides that the ODF must assure that the revenues derived from state forest lands cover the costs of running the ODF and that the HCP would prevent the ODF from adequately funding itself. The court found that it could only provide speculative, uncertain relief to the plaintiff’s alleged injury, noting that, if ordered to operate the plan profitably, the ODF could cut costs, increase timber harvest levels in forests outside of the school district’s borders, or otherwise make changes to come into compliance that would not provide the plaintiffs with additional budgetary funding.
In Legacy Forest Defense Coalition v. Department of Natural Resources, a Washington judge upheld the Department of Natural Resources’ (DNR) approval of the Freedom Timber Sale, concerning 138 acres of state forestland within the Columbia planning unit of the Washington State Trust Lands Habitat Conservation Plan (HCP), in southwest Washington. The environmental organization plaintiffs alleged that, pursuant to the HCP and the 2006 Policy for Sustainable Forests (DNR Policy), DNR is required to develop an Older Forest Target to restore old growth in 10 to 15 percent of each of six western Washington HCP planning units. According to plaintiffs, the DNR is also required to identify structurally complex forest stands—which they assert HCP defines as stands greater than 70 years old—in each HCP planning unit sufficient to satisfy the Older Forest Target before any structurally complex stands in the unit can be made available for timber harvest. The plaintiffs further allege that a 2021 DNR study found that DNR had set aside only two percent of the Columbia planning unit as protected structurally complex forests and that 135 acres of the Freedom sale area are structurally complex. Accordingly, the plaintiffs claimed that (1) DNR acted arbitrarily and capriciously in approving the sale by failing to comply with the HCP, DNR Policy, and DNR procedure in violation of the Public Lands Act (PLA); and 2) DNR approved the sale based on a clearly erroneous Determination of Non-Significance (DNS) by failing to consider the effects of the sale on the Older Forest Target and by failing to comply with HCP, DNR Policy, and DNR procedures. In response, DNR contended that the Columbia planning unit will meet its Older Forest Target by 2090 and that there are no structurally complex stands within the sale, as it is composed of stands in the competitive exclusion, biomass accumulation, and “Maturation I” stages of stand development. The court, in deference to DNR’s interpretation of its own policies and procedures, ruled that the Freedom Timber Sale did not concern a structurally complex stand, that DNR did not act arbitrarily or capriciously under the PLA, and the DNR’s DNS was not clearly erroneous. This case is pending before the Washington Court of Appeals.
In Center for Sustainable Economy v. Department of Natural Resources, a Washington judge voided the Wishbone Timber Sale, which concerns nearly 70 acres of state forestland managed by the DNR. The court ruled that the DNR erred in issuing a DNS for the sale, because it failed to adequately evaluate specific potential environmental impacts and violated the State Environmental Policy Act (SEPA), which requires separate and independent environmental review of each state agency action. Specifically, the court found DNR could not rely on 2019 analyses that it claims demonstrates that the sum of DNR-managed lands sequester “far more” carbon than they emit, because they do not assess the environmental impacts of the Wishbone sale, specifically. The court also found that DNR failed to conduct an adequate review of the emissions that would result from the Wishbone sale, the CO2 that would be sequestered if the sale area was not logged, and “the impact logging [would] have on the area’s vulnerability to climate change effects.” Moreover, the court found that the 2020 Washington Forest Ecosystem Carbon Inventory, complied by the DNR, does not support DNR’s claim that DNR-managed lands capture far more carbon than they release. Additionally, the court ruled that DNR further violated the SEPA’s requirement that state agencies consider alternative actions for conflicts concerning alternative uses of available resources even if the agency issues a DNS.
In 2024, California implemented a new voluntary program that allows CAL FIRE to buy or accept conservation easements or fee title of forest land to encourage their long-term conservation. Eligible properties must have working forest or rangelands and be managed for production of forest products and maintain traditional forest uses. Landowners may sell or transfer rights, such as the right to develop the property or to allow public access, while still retaining ownership of the land and the right to continue to use the land in alignment with the terms of the agreed upon easement or management plan.
In March 2024, the Oregon Board of Forestry approved the Western Oregon State Forests Habitat Conservation Plan, which, if approved, will reduce logging by about 20%. In response, three Oregon House representatives issued a press release in September 2024 urging for more logging in state forests to minimize damages from wildfires. The Chair of the Oregon Senate Committee on Natural Resources and Wildfire responded that changes in logging primarily in western Oregon will not change wildfires that occur primarily in eastern and southern Oregon where logging is not commercially viable. The tension between forest management, logging, and wildfires continues to be an issue.
In January 2024, the governor of Wisconsin announced the approval of a conservation easement in the Pelican River Forest that will mandate that 70,000 acres will “remain open to the public in perpetuity” and be sustainably maintained such that it can be used for “outdoor recreation activities such as fishing, hunting, skiing, trapping, and hiking.” In October 2021, the Conservation Fund purchased the 70,000 acres of land and worked with the Wisconsin Department of Natural Resources to secure the conservation easement, before ultimately selling the property to a private buyer who is obligated to follow the terms of the easement. Local officials in Oneida County, a community near Pelican River Forest, have argued that the conservation easement is invalid because “any use of federal funds to conserve land requires ‘coordination’ with them.” In response to the conservation easement, Oneida County has updated its comprehensive plan regarding local land use, departing from goals of conservation and sustainable land management in favor of development, and discouraging private-to-public land conversion.
