Forest Service Litigation Weekly – March 2, 2015

 

Looks like Region 1 had a good month!

. Forest Management ǀ Region 1
District Court Rules in Favor of Forest Service in Challenge to the Spotted Bear Project on the Flathead National Forest in Friends of the Wild Swan v. Weber. On February 23, 2015, the United States District Court for the District of Montana adopted the recommendation of United States Magistrate Judge Lynch in its entirety, and ruled in favor of the Forest Service in Plaintiffs, Friends of the Wild Swan et al.’s challenge to the Spotted Bear Project on the Flathead National Forest. In adopting Magistrate Judge Lynch’s recommendation, the District Court upheld the Forest Service’s cumulative effects analysis (regarding the decision to exclude the Soldier Addition Project from analysis and discussion on native trout, lynx, and grizzly bear). The Court also upheld the finding that an EIS was not required, that the Forest Service correctly determined that the fisher population is viable, that the Forest Service’s methodology for determining horizontal cover was a means for addressing an existing Forest Plan standard (VEG S6), that the Forest Service sufficiently explained the ESA “action area,” and that the Court lacked the jurisdiction to hear arguments that the Forest Service violated the Salix decision. (12-00029, D. Mont.)

2. Forest Management ǀ Region 1

District Court Rules in Favor of Forest Service in Challenge to the Soldier Addition II Project on the Flathead National Forest in Friends of the Wild Swan v. Christiansen. On February 23, 2015, the United States District Court for the District of Montana adopted the recommendation of United States Magistrate Judge Lynch in its entirety, and ruled in favor of the Forest Service in Plaintiffs, Friends of the Wild Swan et al.’s challenge to the Soldier Addition II Project on the Flathead National Forest. In adopting Magistrate Judge Lynch’s recommendation, the District Court upheld the Forest Service’s cumulative effects analysis (regarding the decision to exclude the Spotted Bear Project from analysis and discussion on native trout, lynx, and grizzly bear). The Court also upheld the finding that an EIS was not required, that the Forest Service correctly determined that the fisher population is viable, that the Forest Service’s methodology for determining horizontal cover was a means for addressing an existing Forest Plan standard (VEG S6), that the Forest Service sufficiently explained the ESA “action area,” and that the Court lacked the jurisdiction to hear arguments that the Forest Service violated the Salix decision. (12-00059, D. Mont.)

3. Forest Management ǀ Region 1
Circuit Court Affirms the Grizzly Vegetation and Transportation Management Project on the Kootenai National Forest in Alliance for the Wild Rockies v. Bradford. On February 26, 2015, the United States Court of Appeals for the Ninth Circuit affirmed an August 20, 2013 decision from the United States District Court for the District of Montana upholding the Grizzly Vegetation and Transportation Management project on the Kootenai National Forest. The Circuit Court found: (1) that the Forest Service was not in violation of the ESA for concluding that the Project was not likely to adversely affect the grizzly bear population, (2) that the Forest Service complied with NFMA and the relevant standards in the Forest Plan, and (3) that the Forest Service’s cumulative effects analysis was adequate under NEPA. The Circuit Court was split on the issue of jurisdiction over Plaintiff’s ESA claim. The majority assumed the Circuit Court did have jurisdiction and resolved the issue in the Forest Service’s favor on the merits; however, Judge Bea, in a concurring opinion, opined that the Circuit Court lacked jurisdiction over the issue because Plaintiff, Alliance for the Wild Rockies, had dismissed its appeal from a 2010 District Court judgment. (13-35768, 9th Cir.)

Docs attached here.20150223OrderFriendsOfTheWildSwan_v_Christiansen_SoldierAddition

20150223OrderFriendsOfTheWildSwan_v_Weber_SpottedBear

20150226CircuitOrderAllianceForTheWildRockies_v_Bradford_GrizzlyProject

The Forest Service: Fighting climate change since 1974

(In memory of the Keystone Pipeline)

As you know, the Senate recently voted to acknowledge that climate change is real.  In this story,  one senator called it ‘a step forward’ for Republicans.  What is most remarkable is that they must have been marching backwards since a much wiser Congress passed the Forest and Rangeland Renewable Resources Planning Act in 1974.  That law, recognizing “the necessity for a long term perspective in planning and undertaking related national renewable resource programs administered by the Forest Service,” required that the Secretary of Agriculture prepare a periodic renewable resource assessment that must include “an analysis of the rural and urban forestry opportunities to mitigate the buildup of atmospheric carbon dioxide and reduce the risk of global climate change.”  (Draw your own conclusions – here.)

WaPost’s Fact Checker gives Senator Tester 4 Pinocchios for logging lawsuit lies

Screen Shot 2015-02-25 at 6.21.16 AM

Good thing the Washington Post’s Fact-Checker doesn’t check many of the claims on this site, right? In reality, this article about Senator Tester’s “whoppers” could just as easily be a FACT CHECK on the entire Montana political, media and environmental establishment, which also repeat variations of these same lies and untruths, and have for years. I’m especially interested to see what the Montana News Media does with this fact-based information, obtained directly from the US Forest Service. – mk

Montana senator twice gets his facts wrong on timber sales and litigation
By Glenn Kessler February 25
http://wapo.st/18kUG33

“Unfortunately, every logging sale in Montana right now is under litigation. Every one of them.”

– Sen. Jon Tester (D-Mont.), interview with Montana Public Radio, Feb. 18, 2015

“Nearly half of the awarded timber volume in Fiscal Year 2014 is currently under litigation.”

– revised statement issued by Tester’s staff, Feb. 19, 2015

Our inbox started flowing with e-mails from outraged residents of Montana shortly after Montana Public Radio ran an interview in which Sen. Jon Tester (D-Mont.)  asserted that “every logging sale” in the state was “under litigation.” The complaints also reached the radio station, as within a day, Tester’s staff offered a revised statement that focused on “volume” rather than sales. Marnee Banks, his spokeswoman, apologized for the original statement, but Tester himself made no comment.

But when we asked Tester’s staff for evidence to back up the revised statement, they simply directed us to the U.S. Forest Service, rather than explain the data themselves. It’s taken a few days to unravel the numbers, but this is a case of apples and oranges, with a few limes thrown in.

What’s the actual effect of litigation on logging in Montana?

The Facts

Logging on federal lands is an important part of Montana’s economy, with the Forest Service having the complex role of seeking to keep the forests healthy while also keeping the state’s mills running. Meanwhile, environment groups in the region are active in making sure the agency does not violate key laws, such as the Endangered Species Act.

Thus, there is an inherent tension. Even so, in 2014, the Forest Service’s Northern Region which includes Montana, met its timber harvest goal for the first time in over 14 years. The region harvested 280 million board feet — enough to build nearly 10,000 homes.

The Forest Service also recognizes the important role of environmental groups who challenge some of its decisions. “Things should be litigated that need to be litigated,” said Heather Noel, a Forest Service spokeswoman. “If there is something the Forest Service has missed, it is very healthy. We absolutely should be tested on that.”

But, despite Tester’s protestations, there is relatively little litigation involving timber sales — and even when there is, it generally does not halt logging operations.

First of all, let’s examine Tester’s claim about every logging sale. According to Tom Martin, a Forest Service deputy director for renewable resource management, there are 97 timber sales under contract in Montana’s national forests. Of that number, just 14 have active litigation, so about 14 percent. But only four of the sales are enjoined by a court from any logging.

These four sales are the Miller West Fisher timber sale in Kootenai National Forest, two Glacier Loon sales (Swan Flats Stewardship and Lunar Kraft Stewardship) in Flathead National Forest and Meadow Creek in Beaverhead-Deerlodge National Forest. We might question the inclusion of Meadow Creek on this list because Forest Service records show the agency itself pulled the decision without explanation. In the Flathead case, the Forest Service choose to appeal rather than accept a court decision ruling against it, thus extending the delays itself.

In any case, even if one accepts the Forest Service’s definition of enjoined sales, just 4 percent of the timber sales cannot be logged because of litigation.

Meanwhile, there are problems with Tester’s revised statement. In that case, he tried to change the subject by changing the metrics. “What we gave was volume of sales,” acknowledged David Smith, another Forest Service spokesman. “That’s quite different from number of sales litigated.”

But it turns out that the volume of sales under litigation (69.4 million board feet) was being measured against annual timber volume (145.3 million board feet). That is apples and oranges, since “very little of this 69.4 million has been cut this year,” Noel acknowledged.

Moreover, “under litigation” is a rather expansive term because it includes projects which are still being logged even as disputes are settled in courts. (The Forest Service also sometimes counts as “under litigation” areas which are not under contract or where an environmental group simply has said it intends to sue.)

The Forest Service ultimately provided a figure of 271.3 million board feet that is under contract in Montana, as of Dec. 31, 2014. Given that many of the projects being litigated are being logged, it is unclear how much has been cut already. So the only reliable figure we can use is the projected volume of the four projects that are enjoined from any logging: Miller West Fisher (15.4 million board feet), Swan Flats (6), Lunar Kraft (4.3) and Meadow Creek (2).

That adds up to 27.7 million board feet, or about 10 percent of board feet remaining under contract. That’s a far cry from “nearly half.”

We should also note that of Montana’s nine national forests, only three have projects under contract that have been halted by litigation.

The Pinocchio Test

Given that Tester is the senior senator from Montana, his comments on litigation in Montana’s national forests are embarrassingly wrong. In both statements, he was wildly off the mark. He needs to brush up on his facts — and his math — before he opines again on the subject.

Four Pinocchios

Dry Sierra Winter

I recently drove over California’s Carson Pass and spent a day in the Lake Tahoe Basin. The weather was good, so I decided to save some money and camp out (!) for two nights (and spending $42 for a night in Reno).

My day at Tahoe began encased in ice, as moist and cold air flowed down the canyon I was camping in. I quickly gathered my frozen gear and stuffed it into the car, making my way to Truckee, and precious morning coffee. From there, I drove down Highway 89, which was very familiar to me, as I used to bicycle, hitch hike and drive it, many times a week, when I lived there, in the 80’s. I continued along the west shore of Lake Tahoe, to reach my first planned stop at Eagle Rock. I had last climbed it in the mid 80’s, and I didn’t know there were now two trails to the top. It was still a bit icy on top but the amazing views sure hadn’t changed. Eagle Rock is a post-glacial volcanic plug, where Blackwood Canyon meets Lake Tahoe.

It appears that the bark beetles haven’t yet arrived in Tahoe yet but, they sure are knocking on the door. I did see bug patches in the southern part of the Eldorado. I heard about one landowner who had 42 bug trees on their property.

P9123021-web

I later visited the famous Emerald Bay, and you will see pictures of that in another post.

Along Highway 88, on the Eldorado National Forest, they have this interesting project being worked on, during the winter. I’m guessing that units have to find other ways to spend their timber bucks since litigation has returned diameter limits to the old unreasonable sizes imposed in 2000. It looks like this project is a highway strip, intended to be a quasi-fuelbreak. It does appear that some trees up to 9″ dbh were taken out, for spacing. There are going to be a ton of tiny piles to burn, and the California Air Resources Board has not been kind to the Forest Service in granting waivers on No-Burn days. And, yes, the piles are covered with burnable material that will keep the pile dry, so ignition will be easy.

P9102965-web

Can we start calling these things “Big Thin Lies”? It is what people see, and they think all forests look like these cleanly thinned and piled forests.

In the SES, Everyone is Above Average

USA-Cinderella-Stamp-1932_Pay_the_Bonus

Assiduous readers will recall that Forest Service employees generally think poorly of their agency, according to the annual “Best Places to Work” polling. Dissatisfaction with the Forest Service cuts across the demographic spectrum — young, old, black, white, male, female.

With one exception. If you are fortunate enough to be one of the Forest Service’s cadre of Senior Executive Service employees (e.g., chief, deputy chief, regional forester, and the like), you’re pretty happy about your workplace. SES employees give the Forest Service a score of “86” out of 100 as a workplace, compared to scores in the 50’s by every other employee group.

GAO’s recently-released report “OPM Needs to Do More to Ensure Meaningful Distinctions Are Made in SES Ratings and Performance Awards” sheds some light on SES employee job satisfaction. The report takes departments to task for inflated performance ratings and associated cash bonuses. It turns out that in the SES everyone is above average — way above average. USDA gave over 95% of its SES employees a performance rating of “5 – outstanding” or “4 – exceeds fully successful,” the two highest scores on the 5-point scale (government-wide, 85% of SES employees received a 4 or 5 rating). SES employees who score below a “3” are ineligible for performance awards.

USDA gave performance awards of 5-6% (about $10,000) to 100% of its SES employees with a 4 or 5 rating. In other words, over 95% of USDA’s SES employees received a nice pay bump.

Imagine what the performance ratings and bonuses would be if the Forest Service’s employees ranked their superiors.

Lessons Learned in Public Participation and Forest Planning under the 2012 Rule

Thanks to Matthew McKinney of the University of Montana Center for Natural Resources and Environmental Policy for sending this paper. Below is the summary and here is a link to the document.

Lesson Learned in Public Parting Rule - Final Report 2.19.15 12

(Technical Question for readers: I haven’t tried to extract text from a pdf in a while..couldn’t do it it- came out as each word on a separate line- had to lift this as a jpg. Anyone have ideas what I forgot/am doing wrong? Please email at Terraveritas at gmail. Thanks!)

Why aren’t forest plan goals accomplished?

Terry Seyden offered this on another thread, but I’d like to hear some other opinions, or better yet, facts.

“The principal reasons most forests are not anywhere near meeting their forest plan timber and wildlife habitat goals, in my opinion, lie in the fact that congress funds targets at levels well below what the plans call for.”

If someone can explain “why” – how the process of getting from forest plan timber numbers to annual targets actually works, please share!  And how is that process different for wildlife habitat goals?

Should the State of Colorado Fund Fire Modeling Research?

Apparently NCAR (Boulder, CO) folks visited the Denver Post editorial board, who produced this editorial last Sunday.

Colorado has been ravaged by large and unpredictable wildfires and floods in recent years that have left death and destruction in their wake.

If we could rewind time and know 12 hours in advance what some of these monsters were going to do, could some of that damage have been prevented? Could lives have been saved?

The answer is undoubedly yes. And that is why forecasting tools developed by the National Center for Atmospheric Research in Boulder are so exciting. They can make such predictions with surprising accuracy, based upon numerous tests retracing actual events. Now, a bill in the legislature would spend $10 million over five years to put these systems to work in Colorado.

It’s important to know that these systems aren’t theoretical.

Scientists have been working on them for decades and the National Science Foundation and other funders have invested more than $20 million in research time and dollars to create the technology.

The Colorado contribution would finish the job and create tools tailored to the unique topography and weather of the state.

The fire modeling system marries newly available satellite imagery with detailed weather data to predict important characteristics of a wildfire and how it will likely move and change in the coming hours. It even considers the available fuel and the hydration status of vegetation.

The money that the sponsor, Rep. Tracy Kraft-Tharp, D-Arvada, is looking for in House Bill 1129 would bring this tool from the demonstration phase to a point where it can be used by firefighters while a fire is unfolding.

The same goes for the flood prediction tool, which uses many of the same types of data to forecast where flooding will occur and how severe it will be.

The price tag for disasters in recent years in Colorado has been huge — in the billions of dollars.

These tools have the potential to reduce costs and suffering at a relatively modest price.

I wonder why NSF couldn’t bring this project home after investing $20 million, or why JFSP or other funders wouldn’t want to do this beyond Colorado. If it’s useful it seems like it should be applied more broadly than Colorado (and maybe the $10 mill would go farther).

Forest Service Litigation Weekly 2/17/15

Thanks again to FS employees who send this to me..would prefer the FS would would post it on a website, but hey ;)!

NOI ǀ Bull Trout
NOI Filed Alleging ESA Violations for Failure to Re-initiate Consultation on Bull Trout. On
January 27, 2015, Cottonwood Environmental Law Center, on behalf of Western Watersheds Project,
Native Ecosystems Council, WildEarth Guardians, and Cascadia Wildlands, filed an NOI alleging that
the Forest Service is in violation of Section 7 of the ESA for failure to re-initiate consultation on the
INFISH and PACFISH management strategies, the amendments that adopted the strategies into Forest
Plans, and every Forest plan that adopted PACFISH and INFISH. The NOI also gave notice of
Cottonwood’s intent to challenge four site-specific projects that relied on either INFISH or PACFISH
to come to a no-adverse modification determination. Cottonwood claims that re-initiation of
consultation is necessary because new critical habitat for bull trout was designated in 2010.

Here’s something interesting…
Region 5..

NOI Filed Alleging ESA Violations Regarding Northern Spotted Owl and Grey Wolf. On February 3, 2015, an NOI was filed on behalf of Conservation Congress alleging that the Forest Service’s approval of the Harris Vegetation Management Project on the Shasta-Trinity National Forest
violates the ESA for failure to conduct adequate surveys to determine whether grey wolves may be present in the Project area, failure to analyze potential adverse effects of the project on the gray wolf, failure to provide for monitoring to determine the presence of and/or effects on the grey wolf during the project, and failure to utilize the best available scientific and commercial data in its analyses.

I didn’t know wolves were in California so looked around and found this..

He has now found a mate and it has been confirmed that he has at least 3 pups on the ground. OR7 and his pack are currently denning in the Rogue River-Siskiyou National Forest in southern OR, in a stretch of habitat shared with California. Experts are now saying that California will be the next state to which wolves naturally disperse and repopulate.

here.

Anyone know a good source for current information?

Anyway, here is a link to the pdf version of the Weekly plus a couple of related court documents.

2015_02_17 NFS Litigation Weekly

20150120DistrictOrderInjPendAppealAWR_v_Ashe_YoungDodge

20150205CircuitOrderWildernessWatch_v_King_HelicopterFlightFredBurrDam