Litigation Weekly Nov. 10-17

Here are a couple of cases:

1. Wild and Scenic Rivers ǀ Region 8.

Circuit Court Upholds District Court Decision in American Whitewater v. Tidwell. On November 4, 2014, the United States Court of Appeals for the Fourth Circuit upheld the United States District Court for the District of South Carolina’s ruling that the Forest Service’s decision to allow limited floating activities on the headwaters of the Chattooga River was not arbitrary and capricious in violation of the APA and was not in violation of the Wild and Scenic Rivers Act. The Court concluded that the Forest Service made a reasoned decision in limiting headwaters floating opportunities to specific portions of the river during the months of December to April and, accordingly, deferred to the Agency’s expertise. On American Whitewater’s Wild and Scenic Rivers Act claims, the Court found (1) that the Forest Service was not required by the Wild and Scenic Rivers Act to manage the river with “floating” as an ORV and (2) that the Forest Service correctly determined that floating could interfere with other recreational uses and therefore, restrictions on headwaters floating are consistent with the Act. The Court also upheld the District Court’s rulings on intervenors, the Rust Family and Georgia ForestWatch’s claims. (13-1960, 4th Cir.)

1. Herbicide Application ǀ Wildlife ǀ Region 6.

Circuit Court Affirms in Part, Reverses in Part, and Remands in Challenge to the Forest Service’s Approval of Herbicide Application on the Wallowa-Whitman National Forest in LOWD v. USFS. On October 30, 2014, the United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded the District Court’s ruling in Plaintiff, League of Wilderness Defenders/Blue Mountains Biodiversity Project’s challenge to a Project to apply herbicides in the Wallowa-Whitman National Forest. The Circuit affirmed the District Court’s ruling on Plaintiff’s NFMA claim finding that the Forest Service did not violate NFMA by failing to discuss in the EIS that the Project would be consistent with INFISH and PACFISH. However, the Circuit reversed the District Court’s ruling on Plaintiff’s NEPA claim finding that the Forest Service was required by NEPA to include an explicit INFISH/PACFISH consistency analysis in the EIS. (13-35054, 9th Cir.)

Tongass Socialism

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Although Ross Gorte has retired from the Congressional Research Service, where he made a career of critiquing fiscally irrational Forest Service timber management, his analytical skills are undiminished. In a report published this month by Headwaters Economics, Gorte and co-author Ben Alexander show that there has been no “transition to a second-growth economy” in the Tongass timber program. The Obama administration has promoted second-growth wood as the lynch pin of its Tongass political strategy. But, as Gorte and Alexander report, the FS budget and sale numbers show the transition has proven to be all rhetoric and no substance.

The cost and revenue figures should shock the conscience of any fiscal conservative. In the most recent five-year period of data (FY 09-13), the Forest Service spent $100 million more on its timber sale program than purchasers paid for the trees. And that’s selling 87% old-growth volume. The finances of second-growth, which no one wants to buy at any price, will prove even more fiscally ruinous (e.g., this pile of rotting logs from the Ocean Boulevard second-growth logging project where the FS paid the purchaser to cut the trees, not a single one of which ended up as a useable wood product).

None of this old-growth logging promotes “forest health,” decreases “fire risk,” “improves” wildlife habitat, or serves any other “restoration” or “ecosystem services” objective. This is pure, unadulterated, old-fashioned clearcut logging. Timber jobs in southeast Alaska number 281 (0.9% of the private sector workforce), while tourism and recreation employ 6,700. Tongass timber sale spending is all about the 100+ FS employees who make their living planning, selling and administering logging, even as FS recreation staff levels decline.

I could go on. Read the report. Here’s hoping that Ross gains even more traction as a private-sector advocate for land management fiscal sanity than he did within government.

4FRI DEIS Released!

4friHere’re the FS documents, below is a press release from
4FRI.

The 4FRI Stakeholder Group is in the process of reviewing this draft decision. We have worked closely with the U.S. Forest Service in this planning effort, which began in 2012. It is the largest Environmental Impact Statement for forest restoration in the country,” stated Diane Vosick, current co-chair of the 4FRI stakeholder group and Director of Policy and Partnerships for the Ecological Restoration Institute at Northern Arizona University, adding “while we are currently undergoing review of the decision details, we are unified in our support of restoring our northern Arizona National Forests.”

“This plan will help guarantee a supply of wood for the businesses who are investing in wood manufacturing, as well as create much-needed jobs,” said Steve Gatewood, the other co-chair of the stakeholder group and a longstanding member of the Greater Flagstaff Forest Partnership. “It is the first of at least two large plans that will eventually encompass 2.4 million acres of northern Arizona forests.”

The 4FRI landscape has been broken into two planning areas: this first plan encompasses much of the Coconino and South Kaibab forests (nearly one million acres), and the second plan, currently in the pre-planning stages, will incorporate 1.4 million acres of eastern Arizona pine forests on the Apache-Sitgreaves and the Tonto.

This draft decision summarizes the types of treatments that are intended to restore forests to a condition that protects communities and watersheds from unnatural catastrophic fire events; improve forest health; enhance wildlife habitat; and restore the beneficial role of managed and natural low-intensity ground fires. For more information on 4FRI, please visit www.4fri.org.

Wolf Creek Land Swap Resurfaces

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This is one of those projects (people in the Forest Service probably know of these) that goes on and on.. when I used to be involved I called it “reasonable access for unreasonable people.” My perspective, though, is that while the proponent may have gotten more reasonable, the other side does not necessarily feel the same way. But I like how honest the people who don’t want it are.. see the italicized last line of the quote. This is one of those that has been done and redone, by many people with much legal advice.

Here’s the link (I think visiting the Denver Post website crashed my browser, so apologies in advance if that happens to you. I would criticize them, but I’m just glad we still have their press presence.)

Dallas said the intent of the Forest Service when it approved the controversial 1986 land swap that gave McCombs the island of private land along the Continental Divide “was to create a village.”

When asked if the agency would approve the land swap today, Dallas said: “I don’t know how to answer that. I’ve been asked that many times. It was what it was. We can’t change that.”

The agency’s reviews of land exchanges that create islands of private land surrounded by public lands “has gotten much more … intense,” he said.

“Any sort of land exchange is generally controversial unless they are pretty small and simple ones, unless they have a really good identified reason like we have now,” Dallas said. “Land exchanges have gotten much more comprehensive; how we look at them, how we consider them. The public interest determination is looked at extremely closely.”

After the agency issued its draft environmental impact statement in 2012 supporting the land exchange, the agency harvested 893 letters commenting on the land exchange and more than 120 attended public meetings in August 2012.

“The proposal for the Village at Wolf Creek has been rife with controversy and strong feelings for a very long time and I’m certainly not so naïve that my decision will settle the controversy and strong feelings,” said Dallas, expressing confidence that his team’s process was thorough and transparent.

The Forest Service will field public comments on the decision for 45 days. If land advocacy groups file objections — which is likely — the agency can extend the comment period for another 75 days.

“We are going to hit it from every side,” Sandler said. “Really we will be looking at this with a microscope to find the inadequacies in this decision.”

Here’s some more info for those who are interested..

Feds “seeking to eliminate key protections for watersheds, streams and salmon”

“The U.S. Forest Service and the Bureau of Land Management are seeking to eliminate key protections for watersheds, streams and salmon” — says this op-ed in the Eugene Register-Guard.

Forest Service should keep stream protections

“In 1994, the Northwest Forest Plan allowed federal forest management to free itself from court injunctions. The plan contains an aquatic conservation strategy, which provides protections for streams and critical support for threatened and endangered salmon. The BLM and Forest Service are revising all forest plans under the Northwest Forest Plan with a goal of increased timber harvests and lower standards for the aquatic conservation strategy.”

Maybe I’ve been living on another planet….

Oregon Juniper Wood Is The Secret Ingredient In New Gin From Sweden

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Here’s a cheery story for Wednesday morning..again, thanks to Forest Business Network.

“In Sweden we make small butter knives out of juniper wood, and just smelling one of these knives you get a great juniper smell. I wondered, if we make a big barrel out of this, what would we get out of it taste-wise?” Hillgren says.

To make a traditional Swedish cask, Hillgren needed thick juniper staves with as few knots as possible, to prevent leaks. His distillery is located just a few miles from Sweden’s largest sawmills, but he couldn’t find juniper wood anywhere in Europe that met his specifications. So he searched Google, and found the In The Sticks sawmill in Fossil, Oregon.

Kendal Derby, a rangeland ecologist, founded the mill so that juniper cut during range restoration projects wouldn’t go to waste. Few of Oregon’s larger sawmills are willing to work with it. Hillgren began emailing Derby, and was delighted to find another small artisan business halfway across the world.

“We haven’t met each other, but we’re doing business very well. It’s all about trust. It’s a perfect cooperation,” Hillgren says.

Derby agrees. “It was fun. When we first started talking about it, I was headed out the door to go elk hunting. Jon promptly wrote back and said ‘we go elk hunting in Sweden too,’” he remembers.

Wyden O&C Bill: Private Landowner Actions on Federal Land

Sen. Ron Wyden has succeeded in pushing his O&C lands act through committee. There are lots of points in the act to discuss, but this one is interesting. I haven’t been paying close attention to the bill since last year. This provision for Private Landowner Actions on Federal Land was included in the Dec. 2013 version of the bill, but the amended bill just approved by the committee adds one key change — see Section F below….

‘‘(B) PRIVATE LANDOWNER ACTIONS ON FEDERAL LAND.—

‘‘(1) IN GENERAL
.—Without a permit from the
Secretary, a person may enter and treat adjacent
Federal land in a Dry or Moist Forestry Emphasis
Area that is located within 100 feet of the residence
of that person if—

‘‘(A) the residence is in existence on the
date of enactment of the Oregon and California
Land Grant Act of 2014;

‘‘(B) the treatment is carried out at the
expense of the person;

‘‘(C) the person notifies the Secretary of
the intent to treat that land; and

‘‘(D) the Secretary has adequate super-
visory, monitoring, and enforcement resources
to ensure that the person carries out the treat-
ment activities in accordance with paragraph (3).

‘‘(A) No dead tree, nest tree, legacy tree,
or tree greater than 16 inches in diameter shall
be cut.

‘‘(B) No herbicide or insecticide applica18
tion shall be used.

‘‘(C) Vegetation shall be cut so that—
‘‘(i) less flammable species are favored
for retention; and
‘‘(ii) the adequate height and spacing
between bushes and trees are maintained.

‘‘(D) Any residual trees shall be pruned…

‘‘(F) Any material of commercial value
generated by the activity authorized in paragraph (1)
is the property of the United States.

Wildfire prevention or forest destruction? Mountain communities question forest service clear cutting

Photo by Josh Schlossberg.

Photo by Josh Schlossberg.

The following article was written by Josh Schlossberg and appears in the current issue of the Boulder Weekly. – mk

Drive along Highway 119 south of Nederland or Highway 9 south of Frisco and you’ll see large swaths of bare soil and scattered slash — including entire hillsides — where once there was forest. These aren’t future subdivisions, but the Arapaho and White River National Forests.

The U.S. Forest Service is undertaking logging with the goal of keeping communities and the forest safe from wildfire. The project is funded by taxpayers to the tune of $1,200 per acre. But some locals, upset about the changes to the forest they know and love, are questioning if logging can really protect their homes and whether wildfire is as much of a threat to the forest as they’re being told.

Some residents of the mountain towns Nederland and Frisco are up in arms about these “fuel reduction” logging projects. Forest Service efforts often include cutting down thousands of acres of public forests that many enjoy as a quiet place to recreate, including the popular West Magnolia Mountain Bike Trail in Nederland and the section of the nationally renowned Colorado Trail outside of Frisco.

The Ophir Mountain Forest Health and Fuels Reduction Project consists of 1,500 acres of clearcuts in the White River National Forest outside of Frisco, with trees chipped and trucked 70 miles to the Eagle Valley Clean Energy biomass facility in Gypsum. The Lump Gulch Fuel Treatment Project will cut 500 acres in the Arapaho National Forest outside of Nederland, with much of the material piled to burn on site, according to Marcia Gilles, public affairs specialist for the Arapaho National Forest. Both areas have recently experienced the native mountain pine beetle, an epidemic that peaked between 2007 and 2009 and has since subsided.

The Forest Service contends that logging these forests, which are in some cases miles from the nearest home, will “protect communities and restore natural processes to forest ecosystems.” Yet some Coloradans point to science demonstrating that logging is often ineffective at stopping large wildfires and can even make them spread more quickly by opening the forest to sunlight and wind.

“We have learned that forest thinning is rarely effective under extreme burning conditions, and the severity of fire in adjacent forests has little to do with whether a home burns,” says Tania Schoennagel research scientist at University of Colorado Boulder’s Institute of Arctic and Alpine Research and co-author of a new study titled Learning to Coexist with Wildfire.

While the wisdom of logging to prevent wildfire continues to be debated, the most effective action homeowners can take to prevent their homes from burning is to tend an area 100 feet to 200 feet surrounding the structure, called the home ignition zone, according to the Forest Service’s Rocky Mountain Research Station. One study showed 95 percent of homes with metal roofs and a maintained area of 30 feet to 60 feet survived fires.

Vivian Long of Nederland, president of the Magnolia Forest Group, says she doesn’t subscribe to the Forest Service “rationale of logging for fire protection to save us from the big fire.” She’s concerned that clearcutting will simply create another “spindly, lodgepole thicket” in the forest, which the agency might want to log again in the future for the same reason. Her group is in discussion with the agency in hopes of amending some of the ongoing logging in the area.

As in Nederland, locals in Frisco are concerned that logging will have a negative impact on recreational resources that are a national draw, including ski areas and the Colorado and Continental Divide trails.

Having spoken to forestry experts and studied the woods as he hikes, Howard Brown of Silverthorne says he would prefer to see the lodgepole pines around trails like the Peaks Trail left alone to eventually become spruce-fir climax forest, rather than turned into a “war zone.” He’s worried about the harm to the local resort community of Breckenridge, as the clearcuts transform from “thickets, to overgrown Christmas tree lots, to dense scrawny lodgepole monoculture.”

“When you live next to the forest, there’s a chance there’s going to be a forest fire,” says Frisco resident Don Cacace, who has opposed the Ophir Mountain project since its inception. “The last thing we want to do is cut down the forest.”

No one denies the inevitability of wildfire in Colorado. Rocky Mountain forests have evolved with fire over the millennia as a natural and essential component of western forest ecosystems. Fire kills off some trees to make room for future growth, returns vital nutrients to the soil and creates wildlife habitat. 

Over the past century, attempts have been made to suppress wildfire out of concern for communities and at the behest of the timber industry. The perspective of industry, the Forest Service, and some environmental groups is that fire suppression has resulted in overgrown forests full of dangerous “fuel” — either dense stands of live trees or beetle kill — that is causing more frequent and destructive wildfires. The proposed cure for these sick forests is a logging prescription that will restore the forest and keep people safe, while gleaning some merchantable lumber or biomass energy.

Recent science has challenged these assumptions, demonstrating that wild fires, including large, catastrophic ones, were historically quite common in Colorado and that large fires are more a product of drought, high temperatures and wind than fuel levels. Studies have shown that large wildfires are often just as likely to burn through clearcuts devoid of most fuels, as they are through densely-stocked forests.

While beetle-killed trees in the Rockies have been impossible to ignore, Bill Romme, who teaches forest and fire ecology at Colorado State University, says there is “little or no such relationship between beetle-caused tree mortality and subsequent fire occurrence and severity in lodgepole pine forests,” as quoted in an article written for NASA’s Earth Observatory.

Scott Fitzwilliams, forest supervisor of the White River National Forest, acknowledges the controversy, yet explains the need for projects such as Ophir Mountain and the upcoming Keystone Vegetation Management to give firefighters a “chance to protect homes, property and power lines.” He is also concerned about what’s going to happen over the next few years when beetle-killed trees start falling, risking the safety of recreationists and creating a “tangled mess.”

As more and more people inhabit Colorado’s forests, the chance of a community experiencing wildfire increases. Federal, regional, state and local grants are available for home treatments, while Saws and Slaws is bringing community members around Nederland, Coal Creek Canyon and Sugarloaf together to make homes firewise and feast together afterward, with projects starting up again in the spring.

No matter what happens in the forest, Fitzwilliams says the Forest Service is going to feel the heat. If they cut trees in an attempt to prevent wildfire, they’ll be criticized by those who’d rather see nature take its course. If they do nothing and a wildfire ignites, they’ll be blamed for that, too. Fitzwilliams says there’s science and emotion on all sides of the issue, and adds “we’re going to have to make some choices that are sometimes hard to swallow.”