Public Land Management

Photo by NPS

The Wildlife and Marine Resources Section has a varied docket of cases involving claims based on the federal wildlife statutes that challenge the management of federal public land for a wide variety of uses that may include wild horses, livestock grazing, timber harvest, forest disease or wildfire-related actions, mining and other resource extraction, roads, and recreation.

A significant portion of this litigation involves the impacts of federal land use on species listed as threatened or endangered under the Endangered Species Act (“ESA”). Under ESA Section 7, federal agencies are required to ensure that discretionary actions authorized, funded, or carried out by them are not likely to jeopardize the continued existence of ESA-listed species or destroy or adversely modify their designated critical habitat. To meet this obligation, federal agencies managing public land such as the U.S. Forest Service and the U.S. Bureau of Land Management (“BLM”) often must consult with the two agencies that administer the ESA, the U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”). Such consultation may lead to preparation of a biological opinion by FWS or NMFS regarding whether the proposed use of federal land is likely to jeopardize the continued existence of the listed species or adversely modify critical habitat. The Section regularly has cases in district courts around the country involving challenges to the decisions of land management agencies and FWS and/or NMFS regarding potential impacts of public land use on ESA-listed species.

Cases in this area of the Section’s practice may involve the defense of long-term land use plans that cover a particular federal forest or broad area under federal management or may concern the agency’s compliance with ESA Section 7 for more site-specific projects and activities by authorized private parties. Examples of cases handled by the Section involving both more localized federal land use and projects across a geographically broader area include:

• Defenders of Wildlife v. U.S. Forest Service et al., Civil Action No. 21-cv-02992-RM (D. Colo. Jan. 27, 2023). The district court upheld FWS’ ESA biological opinion examining the potential impacts on threatened Canada lynx of the Forest Service’s revised forest plan allowing for salvage of disease-impacted timber in the Rio Grande National Forest. 
   
• WildEarth Guardians v. U.S. Forest Service et al., 2:20-CV-223-RMP (E.D. Wash. Sept. 10, 2021). The district court found that the Forest Service complied with its obligations under ESA Section 7 with respect to the potential impacts of grazing in certain allotments in the Colville National Forest on listed species including the grizzly bear.

• Unite the Parks v. U.S. Forest Service et al., 1:21-cv-00518-DAD-HBK (E.D. Cal. May 27, 2022). After a remand from the U.S. Court of Appeals for the Ninth Circuit, the district court again denied a motion seeking to halt over 40 approved logging and vegetation management projects that FWS found in a programmatic biological opinion would not likely jeopardize the continued existence of the endangered Southern Sierra Nevada Pacific fisher.

Photo by BLM

Another portion of the Section’s public lands docket involves direct management of wildlife found on public land. The Wild Free-Roaming Horses and Burros Act directs the Secretary of the Interior and the Secretary of Agriculture to protect and manage all wild horses and burros on federal public lands administered by the U.S. Bureau of Land Management and the U.S. Forest Service. The agencies must carry out these duties in a way that achieves and maintains a thriving natural ecological balance on the public lands. To meet these obligations, if BLM or the U.S. Forest Service determine that a wild horse or burro population has grown to the point of harming public lands, the agencies may decide to remove some of the animals or use population control measures that comply with the agencies’ duty to protect the horses and burros. The Section litigates cases that challenge these decisions. More information about BLM’s Wild Horse and Burro Program is available at the Bureau of Land Management website.