9th Circuit upholds EA for Shasta-Trinity logging project

The mantra I always use to hear was don’t use an EA if you might get sued.  Maybe things are different now?  Or maybe this was just one of those EAs that looked a lot like an EIS.

  • The Project’s proposed treatment methods will retain all existing snags greater than 15 inches in diameter, “unless deemed a safety hazard by the purchaser, or in the case of a need to meet coarse woody debris (CWD) requirements.” Because the Project only removes snags in two limited circumstances, it was reasonable for USFS to conclude that treatment methods will not reduce snag numbers below Forest Plan standards.
  • The Project’s Environmental Analysis considered a total of fourteen alternatives, five of which were discussed in detail.  The USFS reasonably concluded that not treating 17% of the Project area would thwart the major purposes of the Project.
  • USFS properly analyzed the cumulative impacts of the Project.  The Council on Environmental Quality (“CEQ”) Handbook does not require USFS to use the owl’s “natal dispersal” distance in its analysis.
  • While the uncertain effect of fires in spotted owl foraging areas may cast doubt on some aspects of the Project, the Project’s anticipated effects as a whole are not highly uncertain and do not trigger the need for an EIS.  Also, logging in designated critical habitat will be limited to areas that support lower-quality owl habitat—and no forest treatment will occur in nesting and roosting habitat.  “We think USFS has provided a ‘convincing statement of reasons’ to explain why [the Project’s] impacts are insignificant.”

Conservation Congress v. U. S. Forest Service.  March 31, 2017.

8 Comments

  1. From the Conservation Congress website, this shows their ‘expertise’ in fake ecological news:

    “Nature knows how to look after her own in very many ways that we don’t always think of. For example, there are species like Lodgepole pine which need fire in order to regenerate – their seeds can’t germinate without fire. There are species like Black-backed woodpeckers that need burned habitat and can’t survive without burned trees to live in. Yet because the Forest Service goes in to cut down and remove all the burned trees each time there is a fire, Black-backed woodpeckers are being proposed for listing under the ESA as a Threatened species. ”

    More than adequate snags are left for all species to use. On salvage sales, snags are left within the cutting units, outside the adjacent cutting units, inside stream buffers, inside Protected Areas, in areas too rugged for humans to operate, and outside of projects areas, still within the fire’s perimeter.

    • Also, not all lodgepoles require fire in order to regenerate. From Lotan (1976) http://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=1010&context=barkbeetles
      ” VARIATION OF CONE SEROTINY
      Of all the traits contributing to the aggression of lodgepole pine, cone serotiny remains the key factor in regenerating burned areas because of the large number of seeds that can be stored over the years then released all at one time.
      Intense crown fires do not destroy all stored seed. Wildfires move swiftly from crown to crown. Beaufait (1960) studied the effects of high temperatures on cones and seed of jack pine. Cones opened in
      a few seconds at temperatures of 200 to 1300 degrees F. Seed in cones that ignited were harmed, but seed in cones that did not ignite were affected but very little. Thus, if the heat quickly passes and
      does not ignite the cones, cone serotiny is broken and seed are released unharmed.
      Many theories have been considered regarding variability of cone habit in lodgepole pine. Tower (1909) was one of the earliest workers to hypothesize the variability found in the species. He felt that
      cone habit varied because of varying amounts of lime in the soil. Lime-rich soils contributed to serotinous cones and lime-deficient soils led to open cones. However, Clements (1910) found differences in cone opening among individual trees in the same stand in Colorado.
      Mason (1915) questioned Tower’s thesis and reiterated Clement’s findings. Mason further declared that closed cones were more common in old stands than young stands. Bates (1930) backed Tower
      by hypothesizing that poor soils and crowding resulted in closed cones. The soils theory was not substantiated in Crossley’s work (1956), but a recent study has not been made involving soils.
      There is some evidence that age of treeS influences serotiny (Crossley, 1956; Lotan, 1975). Young stands tend to bear all open cones.
      Toward age 20 to 30 years the closed cone trait begins to express itself. Old, overmature stands may decline in cone serotiny. It is my feeling that size of tree, vigor, and crown physiology affect the relationship of age to serotiny.
      Shaw (1914) considered cone serotiny and associated morphological traits (some contributing to preservation of the seed) to be an advanced state of evolution in Pinus (an exception is Pinus albicaulis,
      which has not evolved the capability of flexing cone scales). Shaw considered an asymmetrical, oblique, hard, persistent, serotinous cone to be relatively advanced.
      Critchfield (1957) pointed out that variation in lodgepole pine cones follows Shaw’s evolutionary sequence. Cones of the Sierra Nevadas are fragile, symmetrical, open, and deciduous-Shaw’s early stages.
      Some of the northern Rocky Mountain populations and the Mendocino group are hard, asymmetrical, serotinous, and persistent-Shaw’s later stages. Middle stages are represented by lodgepole pine in the
      Blue Mountains in Oregon, in the Cascades, and some Rocky Mountain areas.
      Critchfield also suggested the existence of elevational clines and that high elevations produce open-coned trees. Local variation suggests that the situation is more complicated than a simple elevational
      cline (Lotan, 1975). Although variation within a stand can be and often is quite low, stands in adjacent drainages may be quite different.
      Serotiny seems to vary among “swarms” of different sizes that have sharp and distinct boundaries. The question is: Does fire select for serotiny and associated traits? ” and so on..

  2. Whoops, back to what Jon said. If I remember, our lawyers at OGC were wary of EA’s for the reasons you said, Jon, it’s always safer to do an EIS.
    Still if you asked CEQ, it is because agencies don’t do them right, and if they did there wouldn’t be any problems. I tried to look up CEQ’s guidelines for a link but found this.. https://www.whitehouse.gov/ceq
    “Check back soon for more information.” Does anyone know anyone over there who knows where the links are?

  3. That sounds like bigger news than the coal pictures on BLM’s website.

    The litigation risk created by EAs that doesn’t exist for EISs is that an EA has to support a “finding of no significant impact” (FONSI). This means it has to demonstrate that the effects of the action don’t meet the definition of “significantly” in the CEQ Regulations (40 CFR § 1508.27) and its 10 intensity factors. In this case the court addressed whether effects were significant because they were “highly uncertain” (5) or because they were effects on listed species habitat (9).

  4. My point was that in the past, when agencies (I’ve been in interagency feedback meetings) tell CEQ that environmental analysis is out of control, the CEQ folks would say “your problem is that you are not doing EA’s when you should, and you are not doing them right.” Which led, if I recall correctly, to the Focused EA effort
    http://www.eforest.us/group/focused-eas

    It would be interesting for someone to take some of these projects and see how they worked out in terms of litigation. Perhaps someone has already done that?

  5. Thanks for the clarification. My guess is that the advice from OGC would still be don’t use an EA (focused or otherwise) if you might get sued, so there probably isn’t much of a track record in litigation. A corollary to this advice was, “if you can’t do a focused (simple) EA, and it starts looking more like an EIS, then you should just do an EIS, which is easier to defend.”

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