Lawsuit Filed to Secure Endangered Status for Gunnison Sage Grouse

January 21, 2015

Sage Grouse
Last November, the U.S. Fish and Wildlife Service (USFWS) listed the Gunnison sage-grouse as “threatened”. On January 20, 2015, Western Watersheds Project and the Center for Biological Diversity filed a lawsuit against the USFWS arguing for endangered status for the species and protections that come with it. These groups argue that the best available scientific evidence demonstrates that the Gunnison sage-grouse is “in danger of extinction throughout all or a significant portion of its range” and must be listed as endangered species.

The complaint points out that the USFWS violated the Endangered Species Act (ESA) and the Administrative Procedures Act (APA) by failing to consider best available science and give public a notice and opportunity to comment on its decision to list the species as threatened. The groups are asking the court to remand the final rule (listing the bird as threatened) to USFWS for “an adequate finding that complies with all requirements of the ESA and the APA” in the meantime retaining the threatened listing in place.

Gunnison sage-grouse population is about 5,000 found only in southwestern Colorado and southeastern Utah. The species are related to the Greater sage-grouse that is at the center of a broader debate that involves 11 western states.

View the entire complaint here

Tenth Circuit: Express or Implicit Dispute of Title Necessary to Trigger Quiet Title Act’s “Disputed Title” Requirement

January 8, 2015

By Susan Hoyt

Byron White U.S. Courthouse

Byron White U.S. Courthouse

The 10th Circuit’s recent decision in Kane County, Utah v. United States, 772 F.3d 1205 (10th Cir. 2014), resolved some issues while obfuscating others.

The Court potentially created a split between the 9th and 10th Circuits when it defined what constitutes “disputed title” for purposes of the Quiet Title Act (QTA). “The Tenth Circuit, as a matter of first impression, evaluated what requirements satisfy the QTA’s “disputed title” requirement. The Tenth Circuit rejected the Ninth Circuit’s “cloud on title” standard and instead held that, to satisfy the QTA’s “disputed title” element, the plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it. Actions that produce ambiguity are not enough to satisfy the disputed title element.

The Tenth Circuit then turned its attention to the district court’s conclusion that Public Water Reserve (PWR) 107 had served to “reserve” two parcels of land across which Swallow Park Road runs from operation of R.S. 2477. The Tenth Circuit analyzed PWR 107, finding that it was intended to provide public access to certain water springs, and noted that it would be “nonsensical” to hold that the provision of public access to the springs expressly excluded the construction of roadways under R.S. 2477 on which the public could access the water springs.”

Read full story | CBA CLE Legal Connection

Dispute Over Utah’s Oil Shale Flowers Heads Back to Court | The Salt Lake Tribune

January 3, 2015

By Brian Maffly

Penstemon 1“The 31-year fight over Utah’s beardtongue, rare wildflowers that grow only near the Uinta Basin’s oil shale outcrops, is far from over despite a new conservation plan that state officials say ensures the plants survival should oil shale mining take off.

This week, the Utah Native Plant Society and other conservation groups formally accused the U.S. Fish and Wildlife Service of ignoring science and caving to political pressure from oil and gas interests when it withdrew a proposed listing for Graham’s and White River beardtongue, also known as penstemon, under the Endangered Species Act (ESA).”

Read full story | The Salt Lake Tribune

Change Coming for Coal Combustion Residuals, Leasing Prices on Public Lands

Two changes in federal environmental management and land regulation are on the horizon.

On December 19, 2014, the EPA signed the Disposal of Coal Combustion Residuals from Electric Utilities final rule.

“EPA finalized national regulations to provide a comprehensive set of requirements for the safe disposal of coal combustion residuals (CCRs), commonly known as coal ash, from coal-fired power plants . . . The rule establishes technical requirements for CCR landfills and surface impoundments under Subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation’s primary law of regulating solid waste.”

EPA Website, 2014 Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities

 
The rule has not yet been published in the Federal Register. To see the pre-publication version of the final rule, click here.

Next month, federal land managers will release proposed rules to change the pricing structure for oil, natural gas, and coal leases on public lands.

“The proposed rules are the key part of an effort the Interior Department has taken in recent years to better ensure that it is getting fair prices for federal energy resources. Current oil and gas valuation rules are more than two decades old and coal rules are a decade old, Interior said Friday. The coal rules would also apply to American Indian land.”

The Hill | Regulators Want to Change Energy Pricing Rules for Federal Land

 
For more on this proposed rule, click here.