Gallatin Wins Hazard Tree Lawsuit

big_hazard_tree_me-web

Here’s a report from the FS on the win:

District Court Upholds Millie Roadside Hazard Tree Removal Project on the Gallatin National Forest in Native Ecosystems Council v. Krueger. On June 4, 2014, the United States District Court for the District of Montana ruled in favor of the Forest Service in Plaintiffs, Native Ecosystems Council and Alliance for the Wild Rockies’, challenge to the Millie Roadside Hazard Tree Removal Project on the Gallatin National Forest. On Plaintiffs’ ESA claims related to grizzly bear, the Court found Plaintiffs failed to demonstrate (1) that the Project would result in an unauthorized take of grizzly bear in violation of ESA Section 9; (2) how the Forest Service would have reached a different decision had they utilized the most recent reports regarding secure habitat (Plaintiffs alleged that the Forest Service had failed to utilize Best Available Scientific Information); and (3) how the project will adversely affect the grizzly bear in violation of ESA Section 7. Plaintiffs also raised ESA claims related to lynx. On lynx, the Court found that its decision in Salix v. U.S. Forest Service did not require the Project to be enjoined because the determination that the Project would not adversely affect lynx or lynx critical habitat was not contingent upon the 2007 Northern Rockies Lynx Amendment. On Salix’s applicability the Court concluded, “…a project affecting lynx or lynx critical habitat may be appropriately and reasonably approved even if the agencies’ analysis mentions or relies in part on the Lynx Amendment, so long as the agencies’ analysis also contains a reasonable independent basis for its conclusions with respect to effects on lynx and lynx critical habitat.” (In Salix the Court determined that the designation of critical habitat triggers the need for reinitation of consultation and ordered the Forest Service to reinitiate consultation on the Lynx amendment.) Finally, the Court found that the Forest Service had reasonably concluded that the Project fell within the categorical exclusion for road maintenance, and had correctly concluded that the use of the categorical exclusion is appropriate because no extraordinary circumstances preclude it. (13-00167, D. Mont.)

Really… they were saying falling hazard trees would affect grizzlies and lynx? I guess it’s one thing to declaim it and and another thing to prove it in court.. but still it is hard to imagine it in Physical World. And I continue to wonder whether there might be more useful investments in promoting wildlife habitat or protecting the environment?

(Edit: Here is a picture of me, from the Eldorado NF’s Power Fire Salvage projects. The top 30 feet or more was also dead, and the picture was taken from the road. The logger ripped the butt log, in an attempt to get more scale. There were five 16’s and three 33’s to a broken top of 20″ diameter….. Larry H. )

37 Comments

  1. Sharon, you wrote: “Really… they were saying falling hazard trees would affect grizzlies and lynx? I guess it’s one thing to declaim it and and another thing to prove it in court.. but still it is hard to imagine it in Physical World.”

    Yes, really, Sharon. It’s my understanding (based on reviewing a number of scientific studies) that most all of the human-caused mortalities of grizzly bears in the U.S. Northern Rockies occur within less than 500 meters of a road. Logging of trees along roads opens up the line of sight deeper into the forest, exposing more grizzly bears to the type of person that would gladly poach a grizzly bear (or any other critter for that matter) just for the ‘fun’ of it. It should be news to nobody that lots of interesting stuff goes on in the woods when the one USFS Ranger patrolling a few hundred thousand acres isn’t around.

    • Are most bears killed within 5km of roads because it is easier for poachers? Or because a large part of bears killed within 5km of roads have a higher probability of being “habituated” and are thus more likely to have conflict with humans, who are also far more likely to be within 5km of a road?

      From the study “Yellowstone Grizzly Bear Mortality, Human Habituation, and Whitebark Pine Seed Crops”

      “humans killed habituated bears proportionally 3.1 times more often (60.0% of 65) than non-habituated bears (19.1% of 89) (G, = 25.8, 1 df, P < 0.001);"

      Either way, I would think reduction of cover along roads would reduce the mortality of bears by humans. Be it reducing the probability of roadkill mortality by making giving drivers more time to brake, or making people feel they are being watched and increasing the perception that if they engage in poaching, they will be caught.

      http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=4&cad=rja&uact=8&ved=0CDsQFjAD&url=http%3A%2F%2Fwww.nrmsc.usgs.gov%2Ffiles%2Fnorock%2Fproducts%2F92_Mattson_JWM.pdf&ei=SxuXU_CNDci7oQTH9ID4Dw&usg=AFQjCNEZmeQOnAczOIEUrx1uAY6Lx8xdKg

    • Let’s assume that hazard trees will fall down, ultimately on the road as they have been identified as those which can fall on the road.

      So what is the other option to a hazard tree project? I think it’s waiting until they fall, and removing them from the road. Suppose that every time a hazard tree falls, at some point people have to stop and remove the tree from the road. It seems to me like that would be a lot more hanging around by people (including poachers) and more disruptive through the years than a couple of sweeps through (timed to avoid grizzlies?). Ultimately the area along the road would be just as open either way because hazard trees will fall down either way. Am I missing something?

      Of course, there are public safety issues about the “let them fall” approach also.

      • We must not forget that many of these dead and/or unstable trees will fall and could impact drainage structures, washing out culverts and causing road slippage. Roads must have “buffers”, for multiple reasons and those areas cannot be considered to be any kind of wildlife habitat. Roads are also a significant investment, and we should be maintaining the roads we want to keep.

  2. The poaching angle is complete hooey. Most people want the darn bears delisted and the restrictions on public use (for work and play) to stop being so unreasonable and stupid. Just shows how a lot of pro Greens will do and say anything to keep the fist mailed.

      • Jon and Matthew.. the article I linked to is by a Montana FWP spokesperson:

        “Grizzly bear poaching is fairly rare. In the last 10 years, we have probably just had a handful of cases, the thing is with a grizzly bear for example, you can’t just hang it on your wall because folks know that’s illegal to hunt in Montana,” said Jones.

        So is she wrong? Misquoted? Has a different definition than you do of “fairly rare”?

        Matthew, your last link is about poaching in general, not grizzly bears.

        So can we count up the individual poaching cases and compare them to other sources of mortality? I couldn’t find anything too easily but I did find this from the monitoring report for Montana for 2012 (of course, I always wonder to what extent tagging and interactions from studying impact endangered species):

        Within the 10 mile buffer, 4 independent females and 9 independent males died in 2012. Three of these 4 female mortalities were caused by the public, whereas 5 of 9 independent males were management removals for various causes. For independent bears, regardless of relationship to 10 mile buffer, 11 of 13 deaths occurred on private lands by citizens protecting property or in defense-of-life. Marked grizzly bears that died in 2012 are provided in Table 18.

        This seems to echo Dave’s thought that a big source of mortality is dealing with negative human/bear interactions.

        Really, not cutting hazard trees and leaving them for road users to stop and cut through time would result in more dangers to bears? I don’t see how you can make that case. It would be easy to make the case that there are more dangers to humans, though, both from falling trees and from less- adept people wielding chain saws.

        • Hello Sharon, Did you realize that, according to MT Fish Wildlife and Parks, each game warden is responsible for about 2,000 square miles, or 1.28 million acres?

          As such, I’m sure any MT FWP game warden (such as my neighbor Bob, or my friend’s wife) would tell you that game wardens are actually made aware of a very small percentage of the total amount of poaching really taking place, while they also are able to catch an even much smaller percentage of poachers.

          Given the tremendous expanses, and the lack of wardens, I think it’s incorrect to assume that only documented cases of poaching (whether on griz, elk, deer, wolves, etc) represent anywhere near the real poaching numbers.

          • Based on what you say we have no clue as to the actual size of the poaching problem for griz.

            So anyone can say anything without data to back him or her up.

            Maybe people who are concerned about griz, rather than losing lawsuits about hazard trees, could fund an effort to find out numbers (that are better than the state or FWS has) to estimate different sources of mortality.

            Note: I have not reviewed the FWS or State figures other than one monitoring report. However if people are doing various habitat management activities to improve griz habitat and the real problem is poaching, that seems like it would be a problem for recovery. Plus agencies are doing much work that really won’t help in the long run when the same bucks could hire more law enforcement folks to work on poaching if that is the real issue.

            Anyone out there know what mortality figures are currently informing griz policy?

            • From the Northern Continental Divide Ecosystem draft grizzly bear conservation strategy (http://www.fws.gov/mountain-prairie/species/mammals/grizzly/continentalindex.html):

              “In the NCDE, the top three sources of human‐caused mortality are: management removals (31%), illegal kills (21%), and defense of life (15%) (Table 1).” (p. 15)

              “Human‐caused mortality is the limiting factor for nearly all grizzly bear populations in the world and this Conservation Strategy aims to manage mortality at sustainable levels through habitat protections that minimize mortality risk while emphasizing conflict prevention, conflict response, and decisions grounded in scientific data and monitoring.” (p. 1)

              So I think the question related to the Gallatin lawsuit should be whether the Forest Service action “minimizes mortality risk” to grizzly bears. Presumably the court talked addressed this question in some way.

              • The real decision is whether to keep the road open, or not. If the Forest Service cannot protect the public and protect the road, then they must close it. There is no “happy medium” in this case. Since the Forest Service has already proposed the project, they must be held legally-liable for any injuries or property damage resulting from hazard trees falling along that road. And, yes, it does happen more often than you think. Here in California, two incidents involving dead trees falling along roads have led to fatalities, so far this year.

                • “Since the Forest Service has already proposed the project, they must be held legally-liable for any injuries or property damage resulting from hazard trees falling along that road.”

                  If a tree falls in the forest, and there is someone there for it to fall on …. I don’t think the FS is liable unless they have acted negligently to create the hazard (would a reasonable person have done this?). That seems like a stretch for dead trees. Maybe if they are building a new road through a dead forest? (I’m thinking of the fatal flood in a FS campground a few years ago that raised questions about the decision to put the campground there.) But I’m not too knowledgeable about government liability and maybe someone else could validate your statement.

                  • If the Forest Service sees it as a safety issue in their purpose and need, they have already stated that they are liable, because they know about the problem but haven’t done anything about it. Clearly, if they cannot do anything about it, they MUST close the road, for public safety. Otherwise, they are not being wise with our tax dollars, risking litigation instead of gating the road. Of course, depending on the road, there may, or may not be some public “discussion” about such an action. *smirk*

                  • Jon, I don’t think it’s that simple. The lawyers’ job is to protect the agency and I remember many discussions about bark beetle trees and where the agency liability would be.

                    People can and do litigate just about anything.. so the safest thing would be to close all the roads until you can remove all the hazard trees. Because you know they’re there and you didn’t do anything about them, leaving a hazard to the public.

                    As I recall, during the aftermath of Colorado bark beetles, our lawyers told us that we needed to have a plan for dealing with them that makes sense (priorities, etc.) and to show that we were working our plan. That’s the best the FS could do other than keeping people out.

                    If we were curious about the details of the advice, we could FOIA it, but I don’t think it would work because it’s privileged (attorney/client). But maybe someone out there is knowledgeable (and retired?) and can weigh in..

                    • Larry – Recognizing a hazard does not necessarily create an obligation to get rid of it. Unless there is a law that requires it, there should be a question of what is reasonable. A few trees in a campground – probably reasonable. A dead forest along a road – probably not.

                      Sharon – I think removal of hazard trees in most cases is in the category of a ‘good idea’ rather than a ‘legal requirement.’ You’re right the people will litigate anything, and I’m thinking that if the Forest Service had ever been found liable, we would see a lot more long-term closures of both roads and trails (and maybe areas). I regularly run through a patch of dead trees on a popular trail in a national forest. The Forest just sprayed the area, so they know about the problem, but the trail is still open and the dead trees are still there.

            • MT-FWP investigates killing of 3 young grizzly bears in Swan Valley (link)
              June 19, 2014

              FERNDALE- Wardens are looking for information that could help them track down whoever killed three young grizzlies in the north end of the Swan Valley.

              Agents with Montana Fish, Wildlife and Parks and the U.S. Fish and Wildlife Service said the bears were killed in the Ferndale area.

              Because the investigation is ongoing, authorities aren’t giving out more details about exactly where the bears were found or how they were killed.

              FWP and USFWS are hoping to hear from anyone that may help them track down the poachers. Anyone with information can contact 1-800-TIP-MONT. Callers can remain anonymous and may be eligible for a reward.

              • Poachers exist. The question is, for the sake of the project, “what evidence do we have that removing hazard trees, instead of waiting until they fall down on the road and removing them then, has an impact on their (the poacher’s) behavior?”

  3. This just in, from The Missoulian/AP today:

    Falling tree kills Taiwanese tourist in Yellowstone

    YELLOWSTONE NATIONAL PARK, Wyo. — A Taiwanese man is dead after being hit by a falling tree while hiking off an established trail in Yellowstone National Park.

    Park officials aren’t releasing the 36-year-old man’s name pending notification of his family.

    A statement from park officials say the man was hiking on the Fairy Falls trail, north of the Old Faithful area and west of the Grand Loop Road.

    The man had left the trail was climbing a slope Monday afternoon when a dead pine tree fell and struck him on the head. The man was declared dead at the scene.

    Yellowstone rangers who responded reported windy weather conditions in the area at the time. The tree that fell was among those killed during the park’s 1988 fires.

    • “after being hit by a falling tree while hiking off an established trail in Yellowstone National Park.”

      Well, there you have it, I guess. Looks like we better expand ‘hazard tree’ logging from a few hundred yards along roads >>>>> to a few hundred yards along forest hiking trails >>>>>> and to all areas ‘off established trails’ too.

      Will that take care of the “problem?”

  4. Matthew, The incident merely reinforces the fact that standing dead trees are hazardous. No one suggested that all dead trees everywhere ought to be cut. Along roads and trails, and around campgrounds? Yes, of course. Even, IMHO, if there may be impacts on wildlife.

    • Yes, Steve, I realize that sometimes trees falls down, and sometimes (though very rarely) a person is near that tree when it falls down.

      Interesting to note that the article called it a “pine tree,” which, if true, very likely was a lodgepole pine tree, as they are the dominant pine in Yellowstone National Park.

      Also, that “pine tree” was killed in the 1998 fires, 26 years ago. Seems like most timber industry people I’ve spoken with in the woods claim that all lodgepole pine (and most trees, it seems) will fall down quickly after being killed by fire or insects, but 26 years seems like a pretty long time for a dead lodgepole pine to stand, based on some forester CW.

      One has to believe that tree provided some pretty good habitat both during it’s life, and also during the 26 years it was dead, but standing. Of course, the tree will provide yet more good habitat for the next however-many decades it takes to decay back into the soil.

      So, I get that you are saying that dead trees along roads, trails and campgrounds need to be cut.

      To me, that sounds like a lot of logging, especially when one considers the total miles of roads and trails on public lands, and puts a few hundred foot buffer along all those roads and trails. Of course, that wouldn’t have done anything to save this Yellowstone tourist, since he was off-trail in the backcountry.

      Plus, don’t many of the trails on public lands go through roadless wildlands and Wilderness areas? Would those dead trees along trails in roadless and Wilderness and National Parks need to be cut too? If not, then do those trees not present as much of a hazard simply because they happen to be in Wilderness/roadless or a National Park?

      Of course, lots of variables at play, but all this reminds me of a very funny Onion article from almost 20 years ago: “Earth To Be Made Child-Safe.”

      • Matthew.. As a person who worked in an area with lots of dead trees, here are some of the conversations we had:

        But often the FS can’t even afford to do roads. So what is the right priority system? How do you handle legal liability? Another problem we found was that it is dangerous to send people in to cut the trees. On a road and in campgrounds, you can possibly use protective equipment ( a cat-looking thing with a screen, equipment is not my forte) so worker safety is another consideration.

        One district tried to cut hazard trees around an area that people used for dispersed camping but the campers just moved into more dead trees. Anyway, it’s complicated but cutting hazard trees along roads seems fairly non-controversial in all but a few places.

  5. Just for grins:

    Poachers are definitely not the lowest form of human life but they aren’t much above those humans who prey on other humans. From this time forward, all poachers will be killed on spot by a laser beam from the nearest satellite.

    Everyone who exits a highway vehicle on federal forest land must wear an OSHA approved hard hat and if the air temp is above 75degrees they must also wear a body cooling vest to compensate for the heat build up under the hard hat. In addition, they must wear full length snake chaps and be sprayed by two full cans of Deep Woods Off to protect them from the Nile Virus, Lyme Disease and other such threats. If attacked by a wild animal they must not defend themselves unless they have an appropriate in-season license.

    Anyone who finds a federal timbered acre with less than two dead trees on it, must construct a 4″ wide girdle around the two biggest trees on that acre. If their count or acreage is off, the satellite overhead will report them to the proper authorities and they will have to pay treble damages for any trees unnecessarily girdled and if they fail to girdle sufficient trees they will be prohibited from visiting any federal property for one year.

    Anyone who dies or is killed on federal timberlands must be left in place as part of the natural ecosystem process. If killed, the killer is free to take a scalp as a reward for reducing the threat to nature from mankind.

    In order to provide a more meaningful wilderness experience, anyone who enters a wilderness area is required to live in that wilderness with only what they can carry in on their back during their first entry. Duration of the visit will be for exactly one year +/- 24 hours. Any deviation from these rules will require termination of the visitor by satellite.

    • Actually, that last rule on wilderness works for me. No modern gear, no cameras, no synthetics, no freeze dry, no TP (beargrass only), no metal — no technology predating the Model T, which I guess is 1909.

  6. Did anyone mention that sometimes you can make things from these hazard trees? Some of them, at least in this area of Southern Oregon can be the very valuable. This alone might be a good reason to cut them down, since most of them are dead anyways.

  7. I know it will seem like semantic nitpicking to some, but the Gallatin is a National Forest. It is owned by all of us, not by the Forest Service. So while the Forest Service may have won a lawsuit, it is a non sequitur to say that the Gallatin “won” anything. This is only significant because equating our national forests with USFS “ownership” is so pervasive, especially in that very paternalistic agency, that sometimes the distinction is forgotten.

  8. Having been more or less in the trenches on several of these, there is plenty of work in many lawsuits for:
    The District
    The Forest
    The Region
    The WO
    OGC and
    DOJ.

    So I guess I could say “the people of the US won” or a Gallatin/RO/WO/OGC/DOJ “collaborative group” won??? If anyone’s interested, I could take an example and describe in more detail how it works..

    • Bob

      Or even better – Why do some insist that any form of forest management destroys the aesthetics and other recreational values YET, there are many who find that intensively managed forests can provide the same values: “Weyerhaeuser … is switching most of its Western Oregon and Western Washington tree farms to access by pre-paid permit only. Families and clubs can also bid on leases to get a private hunting area. … an access fee tryout last year … Chavez: “The permits sold out in three hours showing there is obviously interest and demand. Two, we absolutely saw a decrease in vandalism and dumping on our tree farms during that period. The other thing we heard is that folks who were able to get a permit said this was a really great quality recreation experience.” Weyerhaeuser is not the only company to go this route. Idaho’s largest timberland owner, the Potlatch Corp., started requiring hunters and campers to buy a recreation permit back in 2007 for the same reasons. Others include Inland Empire Paper Company, Rayonier, Hancock and Green Diamond.”

      I personally have seen many intensively managed forests in both the PNW and the SE that were just as beautiful as any national forest lands. It took a while to gain acceptance but, in the south east, the leasing route has been the norm for three decades. Anyone who thinks that Federal lands are cheaper than private lands for their recreational use has two problems in that 1) they forget that their federal taxes for staff, facilities and equipment and for fighting fires are a hidden user fee and 2) they don’t have any concerns about the inequity that exists when other people who have no or infrequent interest in using our national forests for recreational purposes are subsidizing their recreation at a rate that could be reduced with the lower fire and beetle risk (lower taxes) that comes from using sound forest management.

      See: http://nwpr.org/post/timber-giant-begins-selling-seasonal-permits-some-push-back
      and http://tdn.com/news/local/counties-mull-moves-to-counter-weyerhaeuser-access-fees/article_09fa0332-f28f-11e3-b765-0019bb2963f4.html

Leave a Reply

Your email address will not be published. Required fields are marked *