Litigation bi-weekly October 6 & 13

Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)


Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.


More Research: Prioritizing forest fuels treatments

More research that shows the value of fuels treatments, and especially treatments that are strategically placed. Text of press release is below. The paper cited is here ($).


Fighting fires before they spark

UNM research could impact forest management around the world

By Aaron Hilf October 17, 2017

With warm, dry summers comes a deadly caveat for the western United States: wildfires. Scientists say the hot, dry climates found west of the Mississippi, along with decades of fire suppression efforts, are creating a devastating and destructive combination – leading to fires like the ones currently burning in California.

It’s a problem biologists at The University of New Mexico are looking to put a damper on. Now, new research from UNM is giving forest and fire management teams across the country the upper hand in reducing the severity of these events.

“These big fires will always happen,” said Dan Krofcheck, a post-doctoral fellow in UNM’s Department of Biology. “We’re looking at what forest managers can do to minimize the impact these wildfires have on the system.”

The issue has two main components, according to Krofcheck, both stemming from human impact to the environment. Global warming, due to human-caused carbon emissions, has worsened the already hot and dry climate in the most at-risk areas, like California. In addition, aggressive firefighting and fire suppression efforts have left a large amount of fuel, in the form of underbrush, throughout the forests. Together, these two factors lead to massive blazes with the capacity to destroy land, homes and lives.

“For a long time, there’s been this stigma that fire in the landscape is a bad thing. It makes sense, because fire is a destructive process,” says Krofcheck. “But, it’s also an integral part of how these ecosystems evolved and we kind of shut that down through heavy fire suppression activity. The result is that fuel that would have been consumed by frequent fire, builds up and accumulates. Subsequently, when you finally have fire move through an area, after it’s been suppressed for 30, 50, 100 years, you have these massive fires that no longer just consume the understory but they’re actually torching crowns and moving through the tree canopy.”

To combat this, forest managers employ two primary treatment practices. Mechanical thinning is the process of physically removing the thick underbrush with machinery or by hand – a method that is effective but also very expensive. Managers also use prescribed burns to clear areas – using fire, under very strict environmental conditions, to consume excess brush.

The UNM research, ‘Prioritizing forest fuels treatments based on the probability of high-severity fire restores adaptive capacity in Sierran forests,’ recently published in Global Change Biology, examines how to most efficiently use these two methods.

Krofcheck, along with his advisor, UNM Associate Professor Matthew Hurteau, and colleagues from North Carolina State University and the USDA Forest Service, ran forecast simulations using projected climate data in the Dinkey Creek Collaborative Landscape Forest Restoration Project area in California’s Sierra Nevada Mountain Range. In Scenario A, researchers mechanically thinned the entire area that is operationally and legally available – an unrealistically expensive endeavor in practice. Scenario B employed an optimized approach, thinning only the most at-risk portions of land, about two-thirds less than in Scenario A.

“We wanted to find a way to apply these expensive thinning treatments in such a way that we could put as few on the landscape as possible and achieve some comparable outcome, relative to a case where we thinned everything,” said Krofcheck.

After nearly a thousand simulations, the results show that both scenarios reduced the mean fire-severity by as much as 60 percent.

“Even though we thinned about two-thirds less of the forest, we saw the exact same treatment outcomes,” said Krofcheck.

“This research and way of thinking about optimally using your resources, in terms of where you thin, could go a long way in helping these organizations use their dollars most efficiently to achieve their desired outcomes, which is less severe fires,” Hurteau said.

Along with mechanical thinning, both scenarios also heavily depended on fire, either naturally occurring or through prescribed burning, being present in the ecosystem. Researchers say it’s another big takeaway: without fire, no amount of treatment will successfully do the job. It’s something they hope those who live in forested areas will begin to appreciate as a mechanism for stopping devastating wildfire before it breaks out.

A couple more fire articles – costs and solutions

One is an Associated Press overview of the firefighting cost issue.  It’s not research, but it is the way the problem is viewed by many people.  Here is why they say costs are going up:

The U.S. is seeing more and bigger wildfires, and the wildfire season is getting longer. The reasons are hotter, drier weather and a buildup of dead and dying trees because of past fire-suppression practices, said Jennifer Jones, a spokeswoman for the National Interagency Fire Center, which coordinates firefighting nationwide.

The old practice of putting out all fires led to overgrown forests, some with huge tracts of trees that died at about the same time, leaving them prone to large, hot, fast-moving blazes, researchers say.

Some climate and forestry experts say global warming is a factor in the increasing number of fires because it’s contributing to the hot, dry weather.

Jones said another development driving up costs is the increasing number of homes being built in or near forests, a number that the Forest Service estimates is about 43 million homes. Keeping fires away from people, houses, power lines and other infrastructure is more complicated and costly than firefighting in the wilds.

I noticed the absence of “not enough thinning” or “serial litigants.”  Although there’s allusions to both in the last paragraph on legislative solutions (even though they’re not described as a cause):

But one also calls on the Forest Service to manage its woodlands more actively, including thinning dense stands of trees and removing dead trees in an effort to reduce fires. Some argue that pushing management practices is unnecessary and ineffective.

The other features Stephen Pyne discussing what “let it burn” means today in Arizona.  The title:  “Nature is clearing more forest than people can. That may be a good thing.”

It’s complicated, but the gist is this: When lightning-caused fires do not threaten homes, let them burn. That’s an overgeneralization for an approach that takes many factors into consideration such as burn scares from previous fires, weather, drought, fuel, resources, firefighter safety and nearby communities.

Firefighters are frequently “going to managed wildfire, or a box and burn strategy,” Pyne said. Roads, trails and other barriers serve as fire lines. Those lines are the box. The burn clears brush within them. Each box cleared is less likely to be part of a giant fire in the future.

“You’re not just walking away and letting it go,” Pyne said.  The strategy is not new — it has quietly been going on for years, said Zabinski.  “It’s happening quietly all around, but more so the last few years,” she said, because the recent years have brought some drought relief.

The strategy is not without risks because “nature’s complicated. People make mistakes. Things happen,” Pyne said. But without it, “we’ll be playing Whac-A-Mole into the indefinite future. And we’re not going to win.”


There Is No There There

Hispanic Heritage Month began on September 15 and ended yesterday. Or so says the U.S. Forest Service’s homepage. However, unlike the other four banner ads, which click through to provide information on Fall Colors, wildfires, and the like, the Hispanic Heritage Month banner ad links to nothing. The Wayback Machine says that the Forest Service’s Hispanic Heritage dead link first showed up on its homepage on October 10, five days before the month-long observance’s end. For those who wish to know about National Hispanic Heritage Month, click on this link.

ClimateWire – What we know about wildfires and climate change

Pretty good article (posted here as a PDF) that presents a range of research on the relationship of wildfires and climate change. The author might have added more about other factors, such as fuels management, but did add this paragraph near the end of the article:

“Additionally, wildfires, perhaps more than any other type of natural disaster, are heavily subject to the influence of human land use — the types of vegetation we plant or clear away, how often we allow it to burn, and how we choose to manage fires once they start. These types of decisions could both mitigate or exacerbate the intensity of future fire seasons, the effects of climate change notwithstanding.”

Fuels management can be a big help in dealing with wildfires

Dr. Daniel M. Leavell has extensive experience in regard to wildfires that, I imagine, few with a doctorate could claim. His qualifications to speak on this subject are summarized in this quote from his 2017 CV: “I have been involved with fire behavior and disturbance ecology since March of 1973. My experience with wildland firefighting from 1978 to 2012 included being qualified and having had experience as firefighter, squadboss, crewboss, helitac support crewmember, division group supervisor, safety officer, situation unit leader, infrared interpreter, field observer, Incident Commander Type 3, and Operations Section Chief for Type 1 and 2 incident management teams. I have been a member of several Type 1 and Type 2 incident management teams (including wildland fire use teams) for the Northern Rockies. I was responsible for all operations, tactics (short – and long – term), and personnel on fire incidents. I directly supervised all ground and air personnel, information (including advanced fire behavior predictions), and resources. I ordered and directed these resources to meet objectives in a safe and cost effective manner. I have had 30+ years of firefighting experience in complex and diverse fuel types and terrain throughout the Pacific Northwest, Rocky Mountains, Southwest, Southeast, and Alaska and have been cited for excellent leadership and the ability to strategize and direct all resources for immediate, efficient, and effective attainment of objectives. I have served on fires ranging in size from 5 to over 100,000 acres, and have managed and been directly responsible for thousands of human and mechanical resources. And after serving on over 300 fires (including several hurricane relief efforts), only two people I have been responsible for have had minor reported injuries and no fatalities. I am very glad and proud of that and have worked hard to achieve that claim.” (Italics added)

Here are some of the points he makes in regard to the value of forest management in dealing with wildfires:

1) “Dead forest vegetation has been accumulating, drying and remaining cured longer”
2) “The size of forest fuels also greatly influences fire behavior. A quarter-inch diameter twig dries sooner, ignites faster and burns quicker than a 30-inch diameter log because small-diameter wood has more surface area than larger material.”
–> Clarification: “small-diameter wood has more surface area than larger material.” should read: ‘small-diameter wood has more surface area per unit of volume than larger material.’. All else being equal, the higher the surface area per unit of volume the greater the chance of an explosive ignition from a spark (i.e. needles versus logs, shavings vs. lumber and flour vs. seed). In addition, such down wind high surface area per unit of volume materials will dry out more quickly from the heat produced by advancing flames especially if the fuel is above the ground rather than resting on or in the ground.
3) “The drier the wood with more oxygen applied (wind), the hotter it will burn”
4) “Hazards have dramatically increased and exposed our firefighters to more risks. Firefighter safety is always the primary objective and no fire is worth risking a life. For that reason, there is less direct attack on fires than before.”
5) “It has always been easier and safer to suppress fires in responsibly managed forests, where ecosystem health, fuels reduction, wildlife habitat and overall diversity are the primary objectives. This is true today.”
6) “Firefighters use the term red flag conditions to describe when lower humidity, and higher temperatures and winds reduce fuel moisture content. Anything organic can then burn hot if an ignition source starts a fire. Will removing the biomass of live and dead woody fuel affect fire intensity and severity? Of course, it can. The less fuel to burn, the lower fire intensity”
7) “Fuels management is one of the few things we can do along with suppressing fires. We are good at both. Terrain is normally out of our control, as is weather. But, we can manage forest fuels.”
8) “Managing fuels through responsible forest management reduces wildland fire risks, hazards, intensity and severity. It also improves overall forest health and wildlife habitat.”
9) “We have opportunities and choices to make. We can manage our forests responsibly by easing fire back into fire-adapted ecosystems through careful harvests, controlled burns, and various tools in our management toolboxes. Fire and resource management agencies across the West are examining various suppression strategies as an over-abundance of forest vegetation, climate change and more homes (which are fuels, too) in fire-prone areas make massive fires increasingly common and dangerous to residents and firefighters”
10) “We can use science to manage fires to increase firefighter and public safety, foster forest health, promote fire resiliency and nurture wildlife habitat — while improving economic opportunities that will bring jobs. Or, we can let it burn hot and let it go up in smoke”
11) “We can never stop all wildland fires through responsible forest management or otherwise.”
12) “responsible forest management reduces wildland fire risks and hazards. It also reduces fire intensity and severity when they burn in fire-adapted, fire-prone environments.”
–> Clarification: reduced fire intensity and severity make a fire easier/quicker/less costly to extinguish.

Can we all agree that this expert is correct in stating that these are facts (well established fire/forest science) as supported by many other posts and comments on this blog site and elsewhere which have been drawn from scientific journals of old to modern day on-line publications/reports?
If so, can we move on to a discussion of how this should drive our forest policy?

Note: The two –> clarifications are mine.

September litigation monthy

This gets us up-to-date with the weeklies I’ve received.  Sit back, have a cup of coffee ….

Litigation Weekly Sept 1

  • Cent Or Landwatch v Connaughton  – The Deschutes decision to authorize a water supply intake was consistent with the forest plan riparian management objectives (RMOs) and complied with NEPA.  (9th Circuit)
  • Beaver Creek NOI  –  Alleged violations of ESA on the Flathead for failing to consult on the forest plan for grizzly bears in newly acquired lands, and for proceeding with a project in lynx critical habitat prior to completion of forest plan consultation.
  • Boise NOI,  Payette NOI,  BridgerTeton NOI  –  Alleged violations of ESA consultation/conference requirements for publication of over snow vehicle use maps.

Litigation Weekly Sept 8

  • Friends Wild Swan v. Kehr  –  (New case.)  The Beaver Creek Project on the Flathead is being challenged for failure to consider the cumulative effects of another project on the same ranger district, and for being inconsistent with forest plan road density standards for grizzly bears and elk.  (See also Beaver Creek NOI above.)  (D. Montana)
  • Oregon Hunters Association v USFS  –  (New case.)  Plaintiffs argue that the Ochoco Summit Trail System Project on the Ochoco failed to consider effects on elk and violates the forest plan direction for elk.  (D. Oregon)

Litigation Weekly Sept 15

  • CCRMC_v_USFS  –  Collection of data related to possible construction of a mine tailings pond on the Tonto had nominal effects on the environment, and approval did not require consideration of the impacts of the proposed copper mine it would service.  (D. Arizona)
  • WinterWildlandsAlliance_v_USFS  –  (New case.)  This case involves over snow vehicle use maps on the Boise, Payette and Bridger-Teton prepared in 1988 and 1990.  They are alleged to based on out of date information, violate forest plan requirements for at-risk species, and were not eligible to be “grandfathered in” under the Travel Management Rule.  There is also a claim under the Wyoming Wilderness Act.  (See also ESA NOIs above.)  (D. Idaho)
  • WesternWatersheds_v_Michael  –  A Wyoming state statute that criminalized collecting data on public lands after trespassing on private lands infringed on the First Amendment’s right of free speech. (10th Circuit)

Litigation Weekly Sept 22

  • Rocky Mtn Wild v Dallas  –  In a case that voided the Rio Grande’s approval of land exchange related to the Wolf Creek Ski Area, the court denied a motion by the proponent to reconsider its decision.  (D. Colorado)  Discussed in more detail here.
  • Sequoia Forestkeeper v Price  –  The Frog Timber Sale Project on the Sequoia complied with NEPA and forest plan requirements with regard to fisher.  (E. D. California)
  • FSEEE v USFS  –  (New case.)  The complaint alleges that the decision to grant a special use permit to the Navy to conduct electronic warfare training did not to comply with the Olympic forest plan.  W.D. Washington)
  • CBD v BLM  –  (New case.)  The Battle Mountain District of the BLM (Nevada) leased 195,732 acres for oil and gas development using an EA, and was challenged regarding its NEPA compliance.  (D. Nevada)
  • DOW v Duke  –  (New case.)  This case involves the decision by the Department of Homeland Security to waive federal laws under the Illegal Immigration Reform and Immigrant Responsibility Act to construct a prototype Mexican border wall, due to its environmental impacts.  (S.D. California)
  • WildEarth Guard v BLM  –   The BLM failed to adequately consider the greenhouse gas emissions of four coal leases in Wyoming because its assumption that coal would be produced elsewhere if the no-action alternative were selected was not supported by the record (though mining was allowed to continue on remand).  (10th Circuit)

Litigation Weekly Sept 29

  • WildEarthGuardians v. Provencio  –  The Kaibab’s use of the motorized big game retrieval exception under the Travel Management Rule complied with the Rule and the National Historic Preservation Act, and the EA complied with NEPA.  (D. Arizona)
  • USA v. Carpenter  –  Elko County did not prove ownership of a road on the Humboldt-Toiyabe, and the Forest could not convey rights to the road in a settlement agreement.  (D. Nevada)
  • Alaska v. USDA     The 2001 Roadless Area Conservation Rule was again upheld, including consideration of its application to the Tongass.  (D. D.C., scanned file size exceeds site capacity)
  • CBD v. FWS  –  (New case.)  Plaintiffs challenge the biological opinion by the Fish and Wildlife Service, and reliance on it by the Coronado when it approved the operating plan for the Rosemont Copper Mine.  (D. Arizona)  Discussed further here.
  • Wyoming v. Zinke  –  The BLM has proposed to rescind its 2015 Fracking Regulation, and therefore a case involving its validity was not ripe for judicial review.  (10th Circuit)

Science Article on Jerry Franklin, Early Seral and the PNW Plan

Jerry Franklin became known for his role in protecting old-growth forests in the Pacific Northwest, such as this one he visited in 1982.

I’m still on vacation, but saw this and thought it worth posting.. thanks to Forest Business Network.
This article is about the need for early seral in the PNW, but not clear on how much and exactly why. That seems to be why people disagree about how and where. This reminds me of what FS folks used to say about HRV.. it’s a reference, not a prescription. Which leaves lots of room for disagreement about how to use the reference :)!

Good on Jerry for still being there, still thinking and using his wisdom and experience to learn more about forests. He was a teacher and willing to come to the Ochoco to help us out when I was a young sprout and he’s still going strong, and still making a difference. Pretty much a role model for all of us older folks.

Now, Franklin is pressing his case in another major arena: a review of the mammoth Northwest Forest Plan. Nearly a quarter-century after he helped give birth to the plan, federal scientists are re-evaluating the supporting research in a first step toward revising the plan.

DellaSala sees no need for major changes to a plan that he, like many, regards as a landmark. “It’s not that the Northwest Forest Plan is broken,” he says. But Franklin, who served as a reviewer for a draft of the scientific report, is urging a rethink. If he has his way, federal agencies will create more early seral habitat by logging some of the hundreds of thousands of hectares of dense forest replanted after clearcutting, and then letting it regrow on its own.

Here’s the link.