Hazard Tree Lawsuit in California

We had previously discussed how dead and dying hazard trees are considered to be an opportunity for different kinds of uses in Colorado. That’s so we don’t burn them in piles and put more carbon into the atmosphere.. also if we could use them for something, we might get some bucks, which would be good, since the Feds, at least, are in deficit. And we don’t want trees falling on people or blocking roads.

Well, it sounds like they are trying to use dead hazard trees in Northern California. I even hear tell that they developed an “Emergency Situation Determination” that went all the way to the Chief to be approved. Which means OGC lawyers must have weighed in. So THEY must think that they’re obeying the law.

So it turns out that this project is being litigated…someone sent me this email…

Plaintiffs Challenge the Bagley Hazard Tree Project on the Shasta-Trinity National Forest for violations of NEPA, NFMA and the APA in Conservation Congress v. United States Forest Service. On September 156, 2013, the Conservation Congress filed a lawsuit in the United States District Court for the Eastern District of California alleging the Forest Service violated NEPA and the APA for this project approved under an emergency situation determination by failing to prepare an EIS; failing adequately to disclose and analyze cumulative effects of the project along with nearby past, present and reasonably foreseeable timber sales; and, failing to analyze the direct and indirect effects of the project on the northern spotted owl and its critical habitat, late successional reserves and inventoried roadless areas. Plaintiff also alleges the Forest Service violated NFMA and the APA by failing to comply with the Forest Plan standards and guidelines for management consistent with recovery plans (13-01922, E.D. Cal.).

So we might wonder, who are these people and what is their interest in this project?

I looked up the Conservation Congress and found this…somehow I couldn’t find 990’s or a Board of Directors. I will call the Executive Director in Livingston Montana (?) to see if I can find who is litigating, who is paying for it and what their rationale is..

Their accomplishments seem to be many other litigation efforts here.

I think this is an interesting example, because we all would like NSOs to be successful, yet I wonder how they can use dead trees that are right next to, or fallen on, roads.

Here’s a link to info on the project, and here’s one to the emergency determination letter. Here’s what the ESD letter says about the project..

Now, the Conservation Congress says it’s “Holding the Federal Government Accountable to Environmental Laws and Regulations.” But here we have a D administration with very smart lawyers. So a person’s gotta wonder.. if somehow smart D lawyers think it’s legal, is something else wrong with the system?

Would this be different if mediation and public release of the mediation discussion and results, were required?

44 Comments

  1. Shanor, you might want to talk to Roger Jaegel in Trinity County for some more information about this organization and its impact on rational management of Shasta-Trinity NF resources. Roger is a retired county superviosr and former FS employee. His county has suffered extensive fire damage in the last decade, and has attempted to avoid a repeat of the fire losses in the future. Many road block have been encourntered, but the biggest is the use of various environmental laws to stop the FS from doing scientifically sound and proven forest management techniques to repair fire damage, and reduce future fire losses.

    Roger’s contact information is available to you in a seperate email.

  2. Hi SHARON
    As I am 80 years youngexperience tells me this has something to do with my first comment where I mention that they are allowed to enter our house (forest) but we are not
    ALLOWED THEIR HOMES TO CHECK IF THEY ARE DOING WHAt they preach for others
    Is this fair?

  3. It seems pretty transparent to me.

    This is just another attempt to lock up USFS land (or is it now called NFS under the USDA’s re-branding program) by turning it into a defacto, roaded, roadless, wilderness area by legal veto of safety needs. I can’t believe that some people believe that these people can be reasoned with.

    We have a one year old fire site with lots of widow makers adjacent to 19 miles of road and intermittent widow makers adjacent to 75 miles of road that are a real and imminent danger to the public.

    The minimal possibility of damage to endangered species and other environmental concerns on a narrow band of road ROW is elevated by this group over the real and imminent danger to the public.

    Their objective is clearly to dive us to one single viable solution. Shut off access to the road and turn all adjacent lands into nature only, limited access lands. Score another one for the veto power of environmental groups. Their intent is clear, no discussion needed. They are not flexible, logical or reasonable. The only logic that matters is whatever gets people and any kind of human intervention out of the forests. People other than them are evil, nature is good. Once again the NFS is hamstrung.

    I hope the judge slams them hard for their use of legal harassment to harm the public. Maybe this will be one of the tipping points of irrationality that will swing the pendulum back towards reason. But, I’m not going to hold my breath.

  4. Well, since Chad Hanson was successful at stopping hazard tree projects, this copy-cat thinks they can do the same thing in NSO areas. Owls sometimes use snags but, they sure wouldn’t want to build a nest next to a road. Their nesting habitat is quite specific. Nests need green crown cover, and snags do not provide that. Hanson won down here because the Judges found that only roads that are maintained for passenger vehicles are worthy of being made safe from hazard trees. Hanson considered dead trees along roads as BBW “habitat”, instead of hazards.

    • Thanks Guy! Here’s a link to the map.

      It does look like there are roads in the middle of the IRA if I read the map correctly, and the map is correct. Our explanation in Colorado for that was that inaccurate maps were used when the 2001 rule was promulgated.. they did the best they could but they didn’t have time to remap, so they used existing maps at that time. Some of those maps were not current and so did not show existing roads.

      When Colorado redid its maps for the Colorado Roadless Rule, they got rid of areas that had roads and found more areas that didn’t have roads. Of course, someone with a lot of time on their hands could go back and say that the 2001 Roadless EIS was inaccurate and needs to be done again to really follow environmental laws..

      Sometimes it doesn’t seem that simple (to follow all environmental laws and do all the documentation such that it can’t be challenged), does it?

      • Sharon suggests that “someone with a lot of time on their hands could go back and say that the 2001 Roadless EIS was inaccurate and needs to be done again to really follow environmental laws.” No, someone couldn’t. Such a case would be barred by the 7-year statute of limitations for challenges against federal rules brought under the APA.

          • Generally, plans aren’t challenged because they aren’t “ripe” for judicial review, only when they are implemented in the form of a (proposed) project will the courts look at them. If the project (=land management decision?) is in the here-and-now, there isn’t that statute of limitations issue for bringing a lawsuit (though there are other constraints, exhaustion of administrative remedies, standing, etc.) Old (completed) projects don’t get revisited in court. But if a new project is based in part on an EIS that’s no longer valid for some reason, that’s probably going to be problematic for the agency (I don’t know that they would actually do that, seems like asking for trouble).

            • Guy, that’s precisely the point Fred Norbury was making in the video discussion posted below. When you have a plan EIS, the time you get to a project, often things change. So people who don’t like the project claim the NEPA isn’t up to date, so you have to redo it all anyway.

              I vaguely remember a review of cases..maybe on the MBS?

            • yes (well actually, it’s 6 years I believe), but if I had been more clear, I meant to say that for projects the clock starts ticking once the decision is made (and typically anti-project lawsuits are filed fairly soon, and SOL doesn’t become an issue), and that’s true even if the underlying Forest Plan used to justify the project was done many years ago.

    • Some people consider the edge of the road to be the Roadless Area boundary. However, a line on a map could be considered rather thick, where it is drawn. For purposes of road maintenance, there is a sort of “right-of-way” allowance to maintain the investment that was built. There is a road maintenance “prism” that includes areas above and below the road edges. Falling trees do present hazards, not only to the public but, also to firefighters and drainage structures, which protect the integrity of the road, and how well it functions. Culverts get plugged and waterbars can fail, when ditches are blocked. Colorado’s recent experience probably is full of examples of destructive debris flows. If you aren’t going to allow hazard trees to be taken, then why not have the fill-slopes removed, as well?? *smirk*

    • (I guess your term was actually ‘D lawyers.’)

      As to your original question about why this project, after reading the complaint (thanks Guy), I suspect it could be about cumulative effects (mentioned in both the NEPA and ESA claims) and trying to use this project to force a look at a bigger picture. Neither NEPA nor ESA is especially good at this, so you may be right that this is the kind of case where some kind of dispute resolution that would allow a greater breadth of discussion could be useful.

      • Just to be clear, I wasn’t referring to the personal political feelings of the OGC attorneys but the fact that their work is directed by people from the elected party. That is as it should be, as an Appeals Court Judge told us “elections have consequences.”

        My point, which might not have been clear, is that if you claim that “if only the FS followed the law, there would be no lawsuits” then it seems logical that you are saying neither D’s nor R’s follow the law.

          • No, the one we’re talking about is part of USDA and the head is a political appointee currently Ms. Ramona Romero.
            Here’s the current head..http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=bio_romero.xml

            As the General Counsel of the United States Department of Agriculture, Ramona Emilia Romero is the principal legal advisor to Secretary Tom Vilsack and other Department officials. President Obama nominated her on June 28, 2010 and she was confirmed unanimously by the United States Senate on December 22, 2010. Ms. Romero serves as the Chief Legal Officer of the USDA and oversees the work of about 300 legal professionals who provide legal advice and support to all components of the Department. Ms. Romero reports directly to the Secretary.

            I think every agency must have an OGC, except I think Interior calls them “Solicitors”; or is that the same thing?

            Very important topics at USDA are also approved by DOJ, which also has political leadership.

          • Yes, GAO has in-house attorneys that make up its “Office of General Counsel.” But each civilian and military department (e.g., USDA, USDI, Army) has its own OGC attorneys. GAO does not provide attorneys to any other agency.

            Most OGC attorneys are regular, career civil servants. However, the head of each department’s OGC is a political appointee nominated by the President and confirmed by the Senate.

        • Sharon – I would agree that neither Ds or Ps have followed the law all the time, if by that you mean the Administration as a whole (though it would be interesting to compare litigation losses by party-in-charge at the time the decision was made). But I’m not sure it’s reasonable to assume OGC or DOJ ‘weighed in’ on decisions unrelated to pending litigation. That was always a low priority in my experience. Although it might be a good idea to have attorneys look at the NEPA/NFMA/ESA sufficiency for a project that doesn’t have an appeal process to do that, I’d be surprised if that is what happens for the Chief’s emergency determinations.

          • Jon, I am glad we are having this discussion. because I don’t think people get to hear how things really work unless people who were involved tell them after they retire. Of course, there is a time lag, so things might not work that way anymore and I suppose we could FOIA, but I think that’s the best we can do. So I am hoping that you and I can “take the lid off” and expose the inner workings of the legal-practitioner-political complex. Others who are currently working can send their experiences to my email.

            In R-2 , OGC reviewed many projects pre-litigation to make sure they were ready to go just in case they were litigated. They were involved in appeals as well since if a record is subpar you can ask the unit to go back and redo and make another decision.

            My history (also what I would do) would be that if something needs to be signed by the Chief, and it’s not just business as usual, that it would be reviewed by OGC. Also emergency determinations are in the Appeals regs and are not something that people do all the time, so I would want them reviewed. Also, even though I’m politically impaired, hazard trees falling on people in N. California might have some political ramifications so that would be another good reason to review with appointees.

            If you argue that certain circuits have biases (which people seem to believe, since both sides do circuit-shopping) you would expect that decisions aligned with parties that have the same biases would have a higher level of success. Except that administrations can change and then those decisions might not be defended. Don’t know how that would count in terms of success or failure.

            what you don’t get from the rhetoric of “following the law” is that how in practice, politics and legal business is all mixed up.

            • Could be your OGC got more money than mine. Also keep in mind that government litigation strategies are based on a broader look than just one agency. Especially in ESA cases, there is not always internal agreement, which I suppose could provide more opportunities for politics to play a role.

              • I think they are part of the same unit of OGC (?) but perhaps because R-1 had more litigation, they were spread thinner. Also we had separately hired paralegals so perhaps the lawyers could do more (?).

                Do you mean specifically agreement between FS and regulatory agencies such as FWS?

                Because I’ve seen plenty of disagreement between the forest and the region, the forest and the WO, WO staff and the region, all of the above and various combinations of OGC and DOJ, and every possible permutation. Note: I think disagreement is healthy. I just want to help people understand what it looks like to try to “follow the law” in real life..by telling them what really goes on with all the complexities.

                Now DOJ appears to be incentivized for closing cases. This becomes a problem when the nearest path to closing a case leads through undesirable policy outcomes. So even there, there’s a structural tension.

                • It sounds like you are getting into what I’ve heard internally called ‘risk management’ – but others might view as ‘what can we get away with.’ There’s probably been plenty of discussion of this before, but here it relates to the question how willing the higher levels of the agency are to police the legal compliance of the lower levels. Sometimes legal advice carries little weight (if it is even sought).

  5. Roadside salvage is the way we keep our small sawmill alive. I have seen where “they” would do anything not to sell the roadside hazard or dead trees. I have seen them cut down and left to rot. I have seen them cut down and used as fish logs. I have seen them cut down and trucked to town and stored by the Fish and Wildlife for later use and lay there for years. I have seen 400 years trees cut down and turned into firewood. Somewhere, someone thinks it ok to cut these tress down and move them but it is wrong to cut them down and make something of high value out of them. It doesn’t make sense to me, but it seems to make sense to the people in control.
    It is also another example of how it is so easy the environmental community to hold up any kind of timber sale if they chose, It seems it has very little to do with what is good for the environment, but everything to do with making sure as few as trees as possible go to the sawmills.
    I wish there was something we could do about it.

    • Stump- I think there are things that can be done about it. It requires people of good will on both sides to sit down and identify the problem and the solution. That requires political pressure. Which you or I can exert by at least writing to our representatives.

  6. The term Inventoried Roadless Area (IRA) has nothing to do with the presence or absence of roads. Look at almost any IRA, especially in the east, and you’ll find roads all over the place (after all the forests were cut-over lands acquired from private owners). The Roadless Rule prohibits new road construction (and reconstruction?) and limits timber harvesting.

  7. Ahhhh! It wasn’t clear that the project was within a wildfire! I think it is very smart to keep the hazard tree project separate from the larger fire salvage project. It is best when those hazard trees are gone first, anticipating the inevitable lawsuits in favor of the BBW. With this in mind, why would we need an EIS when this kind of project is rather routine? What is there to “analyze”?!? I think an EA is quite appropriate for the job at hand. Being a veteran of these kinds of projects, I have gotten great results and have never seen an owl or goshawk nest in a hazard tree. I have, however, limited work to after nesting season, on stretches of road that go through an owl PAC.

  8. Looks to me like 55% of this logging sale is within an official Inventoried Roadless Area and 45% of it is in designated critical habitat for the Northern Spotted Owl.

    The average mean diameter of trees is 28.8″ DBH. 3% of the sale would log legacy trees over 250 years old; and the trees didn’t even burn. They are all on class 2 roads that passenger level vehicles can’t drive on and the sale didn’t sell because the log trucks couldn’t even drive the road safely. Seems like there is no public safety threat from the trees – maybe the road – but not the trees. Seems like this was a timber grab of 28 MMBF off of 19 miles of road.

    But again, why focus on these specifics when we can wonder why in the world any American citizen would have a problem or concerns with this type of Forest Service (mis) management.

    • If it is a hazard tree project, then there must be a set of guidelines regarding what constitutes a hazard. Yes, it is a kind of project that has been exploited in the past. Even from my point of view, I have seen big marked trees that really aren’t hazards, marked on projects on other Forests. I always felt that since the (my) project is along a road, it would be all-too-easy to find any abuse of the marking guidelines. In fact, many of the timbermarkers I have worked with miss some of the significant defect in some of those roadside trees. There must be some kind of value in keeping that road open and safe.

    • Matthew, usually the reason you don’t want to harvest tress in a real “Roadless Area” is to protect roadless values.
      However, if there is a road, how can it have “roadless values”?

      Unless, “roadless” doesn’t really mean “roadless” but it means something else..

      • “However, if there is a road, how can it have “roadless values”?” Good question, or it could perhaps be rephrased as “If roadless values are a priority, why maintain a road there?” Granted, as Mac said, often IRAs are designated in areas where roads already exist. But does designation of an IRA imply some commitment to move away from maintaining active roads in the area? If not, the designation seems kind of meaningless, we might as well go ahead and designate downtown New York City as a “roadless area”. Seems like alternative strategies here would be either (1) as proposed, harvesting a vaguely specified number of trees (up to about a hundred yards ~ two tree lengths, on either side of the road) or (2) closing the road. If the FS really takes the roadless designation seriously, it seems like the latter would be more consistent with a “roadless values” management approach (cheaper too).

        • But the agreement in the 2001 Roadless Rule involved allowing roads to be kept open that had accidentally ended up in roadless areas. There is specific language but I can’t access the FS server right now to quote it.

          The forest can decide to close roads but that would be based on travel management decisions and not the intent of the 2001 Rule.

      • Hello Sharon, Doesn’t your former employee, the US Forest Service, designate the Inventoried Roadless Areas on national forests? And weren’t you deeply involved with the entire Roadless Rule issue? You make it seem as if a few enviros simply came up with the criteria. Not true. Seems like your questions should be directed to the USFS. Where do you think a roadless area boundary starts, Sharon? Are you honestly saying that an IRA can’t have as one of its boundaries a road?

        • Just like streams have buffers, roads also have inherent maintenance “buffers”, to protect the road from falling trees. However, I don’t think skid trails should be built, on the IRA side of the road. If you cannot reach a felled hazard tree with conventional methods from the road, the logs should stay. If the road wasn’t important, then I would think they would have closed that road when the IRA was designated.

        • Matthew, I thought I explained it.. IRA’s are boundaries related historically to pre 2001 designations (which I was not involved in, others on this blog know more than I do) they were either Once Roadless or incorporated into 2001 due to Mapping Mistakes.

          Once Roadless means that roads were built after the lines were drawn (can’t remember when that was, probably differed by forest.

          Mapping Mistakes are just due to the quality of pre-GIS maps.

          I was referring to roads “in the middle of” (as appears to be on this map) rather than roads “on the side of.”

          Like you said, the idea of “manageable boundaries” usually means some kind of road. Still one wonders how falling trees within a trees length of a road would hurt roadless values on the “roadless” side of the road.

          In fact, when I word on Colorado roadless, at one point Colorado DOW folks were arguing that places with existing timber sales should be put into the “new roadless acreage” because they had grown back to prime wildlife habitat. So I think “roadless values” are mostly in the eye of the beholder.

          Now in some roadless rhetoric the roadless values are already “compromised” by having a road there. So another philosophical question would be “if they are already compromised does accelerating the effects of gravity in this instance matter?”

          • Sharon: “Prime wildlife habitat” these days — at least in Oregon — is native grasses, shrubs, and forbs. Conifers are everywhere, and through much of their lives are “prime” mostly for mushrooms. I was heavily involved, as a citizen, in the “roadless” issue in western Oregon when it was first being promoted, then learned I was wasting my time for many of the reasons being discussed here, so started doing other, more productive, things.

  9. Matthew what is really wrong with harvesting timber from along the roadway? I can imagine it was really a 28 million foot sale, if it was it was too big to start with. And what is wrong with harvesting big trees? I imagine there are thousands of them right behind the ones along the roadway.

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