Sep 082015

A federal judge agreed with environmental groups that the Army Corps of Engineers and Bureau of Reclamation did not adequately study the impacts to endangered pallid sturgeon before deciding to move forward with building a concrete dam and bypass channel along the Yellowstone River (Defenders of Wildlife v. U.S. Army Corps of Engineers, 15-14-GF-BMM, D. Mont.).

Said U.S. District Judge Brian Morris in his order, issued Sept. 4:

"Federal Defendants’ argument presumes that pallid sturgeon will successfully navigate the bypass channel and successfully spawn upriver. As noted above, however, Federal Defendants have failed to conduct any analysis on the efficacy of the bypass channel at accomplishing this goal. Under these circumstances, the prudent approach requires a careful consideration of the environmental impacts before proceeding with the Project. The balance of the hardships and the public interest tip in favor of an injunction. This injunction will ensure that Federal Defendants consider all potential impacts of the Project before construction begins. This analysis will ensure that the Federal Defendants understand the impacts on pallid sturgeon and can address these impacts appropriately."

The groups suing are Defenders of Wildlife and the Natural Resources Defense Council.


From the "background" portion of the order:  "The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The Missouri River between the Fort Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon population. Fewer than 125 wild pallid sturgeons remain and the population appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on the Missouri River and the Intake Dam on the Yellowstone River account, in large part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles upriver from the confluence of the Yellowstone River and the Missouri River. These two barriers prevent the pallid sturgeon from swimming far enough upriver to spawn successfully."

"The United States Bureau of Reclamation (Bureau) intends to spend $59 million to replace the existing wood and rock weir at Intake Dam with a concrete weir in order to ensure continued irrigation water to the 56,800 acres currently serviced by Intake Dam."

"Defenders’ challenge arises largely from their claim that Federal Defendants have failed to comply with NEPA. Defenders argue that the new weir will continue to harm pallid sturgeon and that Federal Defendants have not conducted sufficient
analysis to determine whether the bypass channel will mitigate this harm. Defenders contend that the EA failed to include sufficient analysis and, alternatively, that federal law required that they prepare an Environmental Impact Statement (“EIS”) due to the fact that the Project will continue to cause significant impacts to the pallid sturgeon."

More coverage

Judge expects to make ruling by Sept. 8 regarding irrigation project (by Mike Francingues, Sidney Herald, 8/30/15)

NY Times op-ed (by Chris Hunter, former chief of fisheries for the Montana Department of Fish, Wildlife and Parks, 9/3/15)

Judge blocks lower Yellowstone dam over fish worries  by Matthew Brown, Associated Press (9/8/15)

Apr 282015

A coalition of "timber, ranching, and forest recreation industries" lack standing to challenge the Forest Service's 2012 planning rule, a federal judge has ruled (Federal Forest Resource Coalition v. Vilsack, 12-1333 KBJ, D.D.C.).

"Plaintiffs have failed to show that the 2012 Planning Rule threatens an injury-in-fact that is imminent, or particularized. Moreover, because the injuries that plaintiffs allege cannot be traced to the challenged action of the defendant, plaintiffs have failed to demonstrate that the 2012 Planning Rule will cause them harm," U.S. District Judge Ketanji Brown Jackson said in her opinion, issued today.

She previously issued an order in the case; the opinion elucidates the reasons behind that order.

"The gravamen of plaintiffs’ complaint . . . is the contention that the 2012 Planning Rule exceeds the Forest Service’s statutory authority by requiring land management plans to privilege environmental goals, such as maintaining 'ecological sustainability' and 'ecosystem services,' over other competing uses of national forests, such as logging, grazing, and recreation," the judge summarized.

The plaintiffs are:

Federal Forest Resource Coalition, American Forest Resource Council, Blueribbon Coalition, California Association of 4 Wheel Drive Clubs, Public Lands Council, National Cattlemen’s Beef Association, American Sheep Industry Association, Alaska Forestry Association, Resource Development Council For Alaska, Minnesota Forest Industries Inc., Minnesota Timber Producers Association, California Forestry Association, and Montana Wood Products Association.

Four environmental groups intervened on the side of the government: Klamath-Siskiyou Wildlands Center, Oregon Wild, The Wilderness Society and Defenders of Wildlife.

Apr 022015

A Montana man will be sentenced May 12, approximately a year after he shot and killed three three grizzly bears. A magistrate judge found Dan Calvert Wallen guilty on three counts of taking a federally threatened species (U.S. v. Wallen, MJ-14-45-M-JCL, D. Mont.).

Court documents: Information and Findings of Fact and Conclusions of Law

Feb 272015

Video of oral argument | Audio (2/5/15)

The Ninth Circuit affirmed a lower court's dissolution of an injunction in a challenge to the Grizzly Project on the Kootenai National Forest (Alliance for the Wild Rockies (AWR) v. Bradford, 13-35768).

In an unpublished decision, the court found that U.S. District Judge Donald W. Molloy was justified in dissolving the injunction he had issued June 29, 2010. The order being appealed was issued April 3, 2012.

The circuit judges on the panel were Raymond C. Fisher, Mary H. Murguia and Carlos T. Bea. Bea issued a separate concurring opinion to say he did not believe AWR should have been allowed to appeal the ESA portion of the ruling. Molloy had granted the plaintiffs' motion for summary judgment on its National Forest Management Act and National Environmental Policy Act claims. He ruled for the Forest Service on one of the ESA claims, but then the Forest Service voluntarily dismissed its appeal, and the plaintiffs dropped their cross-appeal.

Said Bea:

"I see no reason to deviate from the usual rule that a party gets one opportunity—and only one opportunity—to seek appellate review of an adverse judgment on a claim. Because Alliance had that opportunity in 2010 and rejected
it by dismissing its cross-appeal, I would not revisit the merits of the ESA claim."

Feb 022015

Defenders of Wildlife and Natural Resources Defense Council have sued three federal agencies "demanding that [they] fix their dam operations that threaten the existence of wild pallid sturgeon." (press release) (complaint)

That's one big fish

"Although the impacts of these dams have been well documented for more than 20 years, the agencies have avoided their obligations under the Endangered Species Act (ESA) to change their operations. Instead of complying with their ESA obligations, the Corps and Reclamation are now proposing to increase the size of the Intake Diversion Dam [on the Yellowstone River] and add an artificial side channel for fish passage that scientists say has no reasonable expectation of success, creating an even bigger and more permanent barrier to pallid sturgeon passage," DoW and NRDC said in their news release, issued today (Feb. 2).

Background, from the press release:

Background: The Intake Diversion Dam on the Yellowstone River – a major tributary of the upper Missouri River – blocks pallid sturgeon from reaching critical spawning grounds, while issues with the timing and temperature of water releases from the Fort Peck Dam, destroy the pallid’s spawning and rearing habitat in the mainstem Missouri. Any eggs that hatch are sent downstream to suffocate, starve, or become food for larger fish in Lake Sakakawea in North Dakota. Together, these dams prevent the pallid sturgeon from successfully reproducing in the upper Missouri River basin. As a result, the wild population in the basin – the most important population of pallid sturgeon remaining for recovery – is dying out. Approximately 125 wild fish remain, all nearing the end of their lives.

NRDC Switchboard (Marcus Griswold)

Dec 102014

The Forest Service must consult with the Fish and Wildlife Service under Section 7 of the Endangered Species Act about "agreed operating procedures" on more than 100,000 acres of forest lands in Montana's Swan Valley (Swan View Coalition v. Weber, 13-129-M-DWM, D. Mont.).

U.S. District Judge Donald Molloy reaffirmed his Sept. 25 ruling requiring compliance with the ESA and National Environmental Policy Act but withdrew portions of his order requiring consultation and NEPA analysis on "site-specific projects." He noted that at present, no such projects are planned.

"Existing site-specific projects approved or accepted pursuant to the Agreed Operating Procedures for which ground-disturbing activities were underway before the entry of this Court's September 25 Order may proceed as planned," Molloy said in his Dec. 8 order. However, "[u]ntil the necessary analysis under NEPA and the ESA is complete, the Forest Service is enjoined from authorizing or accepting Harvest Plans for site-specific projects on the 111,740 acres subject to the Agreed Operating Procedures, including allowing such projects to proceed by default due to the Forest Service's failure to respond to a Harvest Plan."

Species potentially affected by activities within the 111,740 acres include Canada lynx, grizzly bears, bull trout and water howellia, a plant.

"[T]he Forest Service's argument regarding the difficulties and potentially adverse consequences of complying with the law carry little weight here, where the troubles complained of resulted from the Forest Service's failure to follow the law in the first instance," Molloy said in his Dec. 8 order. "Had the Forest Service conducted the requisite analysis prior to taking agency action through approving the Agreed Operating Procedures, the agency would not be in its current predicament."

Here's Alliance for the Wild Rockies' press release. Scroll down for the order.

December 9, 2014

Contact: Mike Garrity, Executive Director, Alliance for the Wild Rockies, 406 459-5936

Federal court reaffirms ruling protecting endangered species on 111,740 acres of national forest lands

The federal district court in Montana reaffirmed and clarified its September 2014 ruling that the U.S. Forest Service violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) when it approved logging procedures for 111,740 acres of newly-acquired national forest lands. The Court’s ruling requires the Forest Service to halt logging until it complies with both the National Environmental Policy Act and Endangered Species Act requirements to analyze “potential environmental effects, reasonable alternatives, and cumulative impacts on those lands” and “comply with the consultation requirements of Section 7 of the ESA with respect to those protected species affected on the lands.”

These so-called "Legacy Lands" in Montana's Swan Valley were former Plum Creek Timber Co. lands which were purchased by the federal government and are now part of the national forest and subject to federal laws that protect the environment and threatened or endangered species. These lands are critical habitat for grizzly bears, lynx, wolverine, bull trout, and a very rare plant called water howellia.

Four conservation groups, the Alliance for the Wild Rockies, Swan View Coalition, Friends of the Wild Swan, and Native Ecosystems Council, filed a lawsuit in 2013 in Federal District Court challenging the Glacier Loon Timber Sale near Lindbergh Lake in the Swan Valley.

"The U.S. Forest Service authorized logging procedures and thousands of acres of clearcutting on these lands without any analysis of how the logging might affect and harm endangered species in the area,” said Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “Of particular concern to local conservationists is the lynx, a rare forest cat that requires large expanses of unlogged area for survival. The Swan Valley is the best potential habitat in the Lower 48 states for lynx, but lynx may be declining in the area."

"The federal court reaffirmed that the federal government violated the law and the ruling couldn’t have been more clear,” Garrity said, pointing to the language in the ruling that “the Court has compelled no substantive changes to Agreed Operating Procedures but merely required the Forest Service to take the procedural steps obligated by law.”

Moreover, in addressing Forest Service concerns that the ruling would enjoin new Harvest Plans until the required compliance with the law has been done, the Court put the blame directly on the agency, writing: “In any case, the Forest Service's argument regarding the difficulties and potentially adverse consequences of complying with the law carry little weight here, where the troubles complained of resulted from the Forest Service's failure to follow the law in the first instance. Had the Forest Service conducted the requisite analysis prior to taking agency action through approving the Agreed Operating Procedures, the agency would not be in its current predicament.”

“The bottom line,” Garrity concluded, “is very good news for the threatened and endangered species that call these lands home, since all commercial logging on these ‘Legacy Lands’ must cease until the Forest Service conducts the proper analysis required by the Endangered Species Act and National Environmental Policy Act and puts in place appropriate protections for the endangered species in the area."