Alliance Wild Rockies v Farnsworth

A recent court decision, Alliance Wild Rockies v Farnsworth, is interesting in that the court denied a suit aimed at halting salvage logging in Montana. The conclusion of B. Lynn Winmill, Chief Judge, United States District Court, is unusual for its commentary:

Conclusion

In the West, fuel and climate are combining to create intense wildfires. Fuels are increasing at an alarming rate as invasive plant species spread across the landscape, while at the same time climate change is lengthening the fire season. This means burnt timber is becoming a major feature of our National Forests. If trees can be logged simply because they burned, we will reap massive clear-cuts. But small projects, fully vetted and properly designed to mitigate impacts, may be valuable in reducing hazards and funding reforestation efforts. The Tower and Grizzly Projects fit that mold. Under the particular facts of this case, the Court cannot find that Alliance has raised the serious questions necessary to obtain injunctive relief. For that reason, the Court will deny Alliance’s motion.

 

 

 

20 Comments

  1. In Idaho, actually. I agree that these pronouncements are unusual because climate change and invasive species were apparently not issues in the case, at least not for the TRO motion. So the court is making statements without any evidence, essentially meaning these are now considered indisputable facts. Also because two collaborative groups were interested in having the timber sales fund restoration activities, and the outcome of this case basically sanctions timber sales as a fund-raising device where it may be assumed that Congress would not fund the restoration otherwise.

    • Jon – isn’t your last point the premise for “retained receipts” from timber sales, specifically to be used as Knudson-Vandeburg (KV) funds or stewardship funds (as authorized by Congress in the 2014 Farm Bill “to perform services to achieve land management goals for the national forests and the public lands that meet local and rural community needs.”)? It seems that these timber sales are exactly what Congress intended.

    • Jon

      Re your comment: “So the court is making statements without any evidence, essentially meaning these are now considered indisputable facts.”

      –> I thought that you agreed that “fuel and climate are combining to create intense wildfires. Fuels are increasing at an alarming rate as invasive plant species spread across the landscape, while at the same time climate change is lengthening the fire season”
      –> So is there evidence or not? Are these indisputable facts or not?
      –> I applaud the judge.

      • I agree. I was just pointing out that the climate science “debate” has reached the point that a judge would treat climate change as common knowledge that doesn’t have to be proven – something that is referred to as “judicial notice:” “Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted.” This just seemed interesting to me since the head of EPA denies the basic science of climate change.

  2. All salvage logging makes a bad situation worse in terms of snag habitat. The problems is that (i) snags fall down, and (ii) future snags come from mature green trees.

    After stand replacing fire, snags may be abundant in the near-term but that hides a long-term shortage which occurs after most of the snags fall down and before the regeneration of new green trees grow large enough to start recruiting new large snags. This period during which snag habitat is in short supply is known as the “snag gap,” both salvage logging and regen harvest make the snag gap worse. It’s simple math.

    There is already a shortage of snags and snag recruitment on non-federal land and all public land that has ever been commercially logged. This means there is a landscape shortage of snag habitat. salvage logging and regen harvest are contra-indicated.

    In 2015 Jerry Franklin offered illuminating comments on the Klamath NF’s Westside Fire Salvage DEIS:

    The massive input of large dead wood is characteristic and critical to stand development processes and the ultimate provision of habitat for late-successional species following stand replacement fires (Maser et al. , 1988; Franklin et al. 2002). As noted these wood structures may persist and play functional roles for several centuries, particularly in the case of decay resistant species. Large pines may also persist as snags for several decades and additional periods as logs on the forest floor. In fact, the entire recovering forest ecosystem will depend upon this pulse of CWD until it reaches a point in its development where the new stand begins to generate snags and logs of comparable size and heartwood content-generally between 100 and 200 years (Maser et al. 1988; Franklin et al., 2002). Consequently, basing snag and CWD retention following salvage on levels of these structures found in existing mature and old forests is not appropriate; all of this initial pulse of wood is needed to reach those levels one to two centuries from now! Indeed, the use of mature forests as a standard for CWD is particularly inappropriate since this is the period when CWD levels are at their lowest level during the entire natural developmental sequence from stand-replacement fire to old growth (see diagram in paper by Spies in Maser et al. 1988). It certainly does not appear to me that the approach taken in the DEIS reflects an appreciation of the fact that this one-time input of large and decay resistant CWO is all that the recovering forest ecosystem is going to get for the next 100 to 200 years.

    Jerry Franklin. Comments on the Klamath NF, Westside Fire Salvage DEIS. 6 April 2015.

    • “There is already a shortage of snags and snag recruitment on non-federal land and all public land that has ever been commercially logged. This means there is a landscape shortage of snag habitat. salvage logging and regen harvest are contra-indicated.”

      That just isn’t so! Here in California, there are over 100,000,000 dead trees, with 10’s of millions more not identified by surveys (still green but not connected to the roots). Look at the vast dead spruce forests. What about climate-enhanced mortality and forest overcrowding? How is that working out for old growth dependent species? We do not have pre-human forests and we never will, as long as humans live on this planet. Face reality!

  3. Tony – I think you’re right; I’m just not sure it’s right. Under NFMA, I think achieving the desired vegetation conditions in the sale area should be the primary purpose of logging (safety issues would have been addressed regardless). The Forest Service should not plan timber sales just because they need to raise money to do something else.

    Here’s the court’s summary of the purpose of the projects: “The Tower Project aims to salvage merchantable dead or dying trees to (1) protect the health and safety of the public; (2) restore areas burned by the Tower Fire; and (3) recover the remaining economic value of the timber. The project will remove “danger trees” on 52 miles of road, 8 miles of hiking trails, and 17 miles of snowmobile trails in the burned area. According to the Forest Service, the project will also reduce future fire severity by reducing the fuel in the area. The Forest Service plans to restore the forest by replanting native trees to reestablish desired forested conditions. The Grizzly Project will remove trees that could be a safety hazard along 27 miles of forest roads, restore burned areas with desired tree species, and allow logging in about 1,700 acres burned area. Id. at 4. There will also be additional maintenance and reconstruction of existing roads as part of the project.”

    The only stated ecological purpose is (2), and as 2nd Law suggested, there are scientific questions about whether the project is necessary or helpful to “restore” the forest to its desired condition, whether planting trees offsets the loss of dead wood, and how important it is to reduce fuel in the burned area. But the court doesn’t bother to make this distinction any way. Maybe I’m reading too much into this, but it sounds like the Forest Service could pretty much log where and how it wants to as long as it needs the money for some other purpose related to the forest plan. And this is under a newly revised forest plan for the Idaho Panhandle. (It does also seem a little strange to me that Congress would let an agency fund itself when it is so worried these days about how money comes and goes.)

    • “The Forest Service should not plan timber sales just because they need to raise money to do something else.”

      I disagree. I think it is perfectly appropriate to use sound forest management (a sustainable harvest) to generate revenue for maintaining roads, bridges, and culverts, for example, and for funding projects that maintain the “forest infrastructure” — the forest itself — as in fuels reduction, thinning, etc. This would be more efficient than sending timber receipts to Washington D.C. and taking furning in return for the same projects, no?

      • Steve – I think this philosophy is contrary to the intent of NFMA, which resulted from too much emphasis on economics, and said “the harvesting system to be used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber.” It’s also contrary to the 2012 Planning Rule which essentially codified what Chief Dale Bosworth said in 2003: “In my view, the way to manage for healthy ecosystems is to focus on what we leave on the land, not on what we take away… The goal is to meet the desired future condition.” Money shouldn’t drive projects. Long-term desired conditions should drive projects, and then you can talk about what to do with any revenue. If the desired condition for this project area is “no dead wood” then salvage logging could be justified.

        • Then, how can non-commercial work get done, without a commercial project to support it? (Without increasing budgets or lowering ASQ)

          The better question is; How do we get more work done on the ground, with everything else being the same? Part of the answer sits in implementation. Dollars are spent in planning while pennies get spent in implementation.

          • “…how can non-commercial work get done, without a commercial project to support it?”

            The same way it does now, by using funding from Congress. But some projects are funded through stewardship contracting, such as when culverts are replaced as part of a commercial thinning. This connection need not be limited to the same site as the timber harvest. The principle is the same, even if the culverts are two watersheds away from the commercial thinning.

            • I once worked on an insect salvage project which included some plantations in its acreage. The plantations were included so that KV dollars could be spent on them from the current salvage sale. That probably bypasses the intent of the law. KV money is supposed to be used for that project’s impacts. Not another project’s impacts.

        • Perhaps, there is a primary purpose for the project (creating veg desired conditions) and a secondary purpose (addressing other desired outcomes described in the plan using available funds through congressionally-approved authorities). That would be a long Purpose and Need statement, but it would also be transparent.

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