Jon Haber

Public Lands Litigation – update through October 5, 2023

by

I wanted to wrap up the latest before my own “blogging break.”  Not a lot where the Forest Service is a party, and mostly related to the Endangered Species Act, but should be relevant and hopefully interesting.

FOREST SERVICE

New lawsuit

On September 25, Native Ecosystems Council and Alliance for the Wild Rockies filed a lawsuit in the Montana federal district court to oppose the Middleman Project on the Helena-Lewis and Clark National Forest.  The complaint says the project area encompasses 141,799 acres and includes 53,151 acres of tree cutting and burning, 46 miles of new temporary road construction and 90 miles of road reconstruction.  The effects of roads on grizzly bears, changes in mapping of lynx habitat and effects on elk habitat are issues raised by plaintiffs, who allege violations of NEPA and NFMA.

ENDANGERED SPECIES ACT

Litigation follow-up to Center for Biological Diversity v. Bernhardt (D. D.C.)

On September 28, the U.S. Fish and Wildlife Service and National Park Service released a draft plan and EIS analyzing options to restore grizzly bears to the North Cascades in Washington. This step follows the Center for Biological Diversity’s litigation challenging the Trump administration’s 2020 termination of a previous restoration plan.  The draft plan and the lawsuit complaint are linked to this news release.  (Plaintiffs refer to the litigation as “successful,” but I haven’t found a court opinion.)

Supreme Court review denied in San Luis Obispo Coastkeeper et al. v. Santa Maria Valley Water Conservation District (9th Cir.)

On October 2, the U. S. Supreme Court denied a request from the operators of Twitchell Dam to avoid measures to protect the endangered Southern California steelhead in the Santa Maria River system.  The decision leaves in place a ruling by the 9th Circuit Court of Appeals that the Bureau of Reclamation and the Santa Maria Valley Water Conservation District can release water from Twitchell Dam to comply with the Endangered Species Act.   Said ForestWatch executive director Jeff Kuyper, “With simple changes to the Dam’s water release schedule, we can give fish a fighting chance at reaching their historic spawning grounds in Los Padres National Forest while maintaining plentiful water supplies for our farms and communities.”   (The 9th Circuit opinion is here.)

New lawsuit:  Center for Biological Diversity v. Haaland (E.D. N.C.)

On October 4, plaintiffs challenged the Fish and Wildlife Service’s failure to respond to their 2016 petition to change the designation of the population of the 13 remaining wild red wolves as “non-essential” and restrict red wolf shootings by private landowners.  The Endangered Species Act defines an experimental (reintroduced) population as ‘essential’ if the loss of the population would significantly reduce the likelihood of the species’ survival in the wild.  Additional background is provided here.

  • Proposed ESA listings

Two species have recently been proposed for listing under ESA by the Fish and Wildlife Service, both after lawsuits initiated by the Center for Biological Diversity.

On September 29, the FWS proposed listing the northwestern and southwestern pond turtles, found throughout Washington, Oregon and California, as a threatened species.  They may be found at elevations up to 6500 feet.  The CBD news release is here and the Federal Register Notice is here.

On October 2, the FWS proposed listing the short-tailed snake as threatened.  The short-tailed snake has adapted to live primarily underground in sandy upland sandhill, scrub and hammock habitat in central and north Florida.  Silviculture is among the threats to its persistence.  This news release includes a link to the Federal Register notice.

On October 5, the Fish and Wildlife Service listed the Lassics lupine as endangered, and designated 512 acres of critical habitat on the Six Rivers National Forest.  It is found at high elevations only along the California-Nevada border.  Said Vicky Ryan, of the Arcata Fish and Wildlife Office, “We’re grateful for our partnership focused on Lassics lupine conservation and habitat management with Six Rivers National Forest.”  The article includes a link to the notice (and it does not mention the Center for Biological Diversity).

On September 26, President Biden vetoed two Republican-sponsored Senate joint resolutions seeking to undo Endangered Species Act protections for the northern long-eared bat and the lesser prairie-chicken, which became effective in January, 2023.  While the prairie chicken is primarily found on private, non-forested lands, the effect of up-listing the bat to endangered status could affect logging and federal lands.  (This legislative procedure is authorized by the Congressional Review Act.)

IRONIC HEADLINE OF THE MONTH:  “PRESCRIBED BURNS PLANNED FOR SMOKEY BEAR RANGER DISTRICT”

PODs and the Lolo plan revision

by

Potential Operational Delineations (PODs) have come to the Lolo National Forest at the same time it is embarking on revision of its forest plan.  Coincidence?  Fortuitous?  Let’s revisit PODs (again).

To create PODs, stakeholders are assembled and first tasked with drawing lines on a map. The lines correspond to places where fires can often effectively be stopped, like a ridge, river, road or burn scar.

Developed by the U.S. Forest Service, the PODs approach has been growing across the West since 2017. The framework is supported by a $100 million federal investment as part of the 2021 Bipartisan Infrastructure Law and is now being used by an estimated 109 national forests and regional partners. Following a series of workshops, POD lines have been drawn as of late June 2023 for all units in USFS Region 1, which includes all seven national forests in Montana.

Since one of the purposes of PODs is to provide opportunities for not suppressing wildfires, this article talks about the current unpopularity of that option.   It also talks about real-world tests with wildfires on the Tonto National Forest, where buy-in from local partners led to successful management of fires for resource benefits.  As the article’s title suggests, the author seems focused on the technology, but the article also acknowledges the forest planning questions.

This is clearly a planning process:  “If we’re ever going to get over the hump in fire management of being more proactive about allowing certain fires to burn and putting other fires out, you have to think about these things and plan for them before the fire happens.”  But while the Forest Service talks about collaborating with other landowners, they don’t seem to talk about including the general public.

And PODs will not be used only for emergency situations after fires have started, but “PODs can also inform where fuels are treated, like the shaded fuel break project on the Lolo National Forest.”  If that “informing” amounts to management direction that is different for different parts of a national forest then it needs to be in a forest plan.  (See the management differences in Table 4 from this post.  If they stop at something like a “probability of containment” rating, that could probably be treated as “information.”)

This article recognizes the barrier that existing plans may be to managed wildfires.

In general, federal, state and tribal land management plans are the law of the land that dictate the suite of options available to a fire manager. Even if PODs have been drawn and risk assessments completed, a land management plan will override any strategy suggested via the PODs process that conflicts with the plan’s prescribed approach.

If a plan has not provided for wildfires to be used for resource benefits (like the current Lolo plan doesn’t), PODs for that purpose would not be consistent with the forest plan.  So, what about the Lolo forest plan revision?

The Lolo is currently one year into a four-year revision process for its forest management plan. Once the revision is completed, Missoula District Ranger Stonesifer said, the forest will have a plan rooted in the best available science. So far, it is unclear if the revised plan will incorporate PODs.

It’s hard for me to see how they could NOT incorporate them.  Once they open the door in the forest plan to managed wildfires, they can’t avoid talking about the details of how that would be done, and once they start drawing PODs on a map, I don’t see how they could not include the public interested in the forest plan, nor avoid integrating this with other plan decisions and talking about the effects of these designations.  That is forest planning.

(And then, whatabout all those PODs that have already been drawn on other national forests outside of the forest planning process?)

 

 

Undermining science to undermine renewable energy

by

 

We’ve talked a little about energy transmission, especially in conjunction with renewable energy production, and the need to improve the electrical grid.  One thought seems to be that conservation interests are a barrier to that.  It turns out that the coal industry may be an even bigger barrier.  At least, here’s an example from the Trump Administration.

The Seams study demonstrated that stronger connections between the U.S. power system’s massive eastern and western power grids would accelerate the growth of wind and solar energy—hugely reducing American reliance on coal, the fuel contributing the most to climate change, and saving consumers billions.

But a study like Seams was politically dangerous territory for a federally funded lab while coal-industry advocates—and climate-change deniers—reign in the White House.

According to interviews with five current and former DOE and NREL sources, supported by more than 900 pages of documents and emails obtained by InvestigateWest through Freedom of Information Act requests and by additional documentation from industry sources, Trump officials would ultimately block Seams from seeing the light of day. And in doing so, they would set back America’s efforts to slow climate change.

The fallout was swift: The lab grounded Bloom and Novacheck (the lead researchers), prohibiting them from presenting the Seams results or even discussing the study outside NREL.  And the $1.6 million study itself disappeared. NREL yanked the completed findings from its website and deleted power-flow visualizations from its YouTube channel.

If NREL researchers are able to work unencumbered by political concerns and release Seams in its entirety, it could help point the U.S. toward a greener future, in which a robust economy runs on renewable energy. But for now, Seams is demonstrating an unintended finding—that when administrations stick their hands into scientific research, politically inconvenient truths are in peril.

The author indicated later that Congress had demanded that the study be released (and here it is).

This story is another example of political interference in science production and distribution.  I remain a strong skeptic that the pro-environment side can match this kind of interference by the coal lobby and “climate-change deniers” (as some have suggested here, including self-proclaimed climate-change “skeptics”).  It also seems obvious that this direct intervention is a lot more influential than any bias that exists in research funding.

Public Lands Litigation – update through September 25, 2023

by

FOREST SERVICE

Court decision in Patagonia Area Resource Alliance v. U. S. Forest Service (D. Ariz.)

On September 1, the district court denied a preliminary injunction against the Sunnyside and Flux Canyon exploratory drilling projects in the Patagonia Mountains on the Coronado National Forest.  The Sunnyside Project is a seven-year exploratory drilling project, requiring the construction of thirty drill pads within three drill areas occupying 7.5 acres.  The Flux Canyon Project is a twelve-month exploratory drilling project, requiring the construction of about 2,000 feet of road and six drill pads disturbing 1.8 acres of national forest land.  The court found plaintiffs would be unlikely to prove inadequate analysis of cumulative effects, effects on Mexican spotted owls and other species and water conditions in the EA for the Sunnyside Project or that Flux Canyon Project did not warrant a CE.

New lawsuits:  Alaska v. U. S. Dept. of Agriculture (D. Alaska)

Inside Passage Electric Cooperative v. U. S. Dept. of Agriculture (D. Alaska)

Murkowski v. Vilsack (D. Alaska)

On September 8, the State of Alaska and two other groups of plaintiffs filed three separate federal lawsuits challenging the Forest’s Service’s repeal of the 2020 Alaska Roadless Rule and reinstatement of the national 2001 Roadless Area Conservation Rule on the Tongass National Forest, which restricts road construction.  The lawsuit focuses on “prospective geothermal and hydroelectric power plants, as well as hypothetical metal mines whose products could be used for green technologies.”  An attorney for a plaintiff said that logging companies aren’t part of these new lawsuits because logging is restricted under a new forest plan, and the prospects of changing the forest plan are limited (evidently referring to the 2016 “young growth” plan amendment).  (The article includes a link to all three complaints.)

New lawsuit:  Western Watersheds Project v. Haaland (D. D.C.)

On September 14, plaintiffs sued Clark County, NV and the Fish and Wildlife Service along with the Forest Service, BLM, and Park Service (and USDA and USDI) for failing to protect the Mojave desert tortoise and other rare species subject to the Clark County Multi-Species Habitat Conservation Plan (“MSHCP”). The Forest Service, BLM, NPS, and Fish and Wildlife Service all signed an Implementing Agreement, which binds them to implement the MSHCP.  The MSHCP was created to offset the development of nearly 170,000 acres of land on the outskirts of Las Vegas that would destroy habitat for imperiled desert species, in exchange for mandatory conservation measures, which have allegedly not been implemented.  Trespass grazing (by Cliven Bundy) and solar energy permits are among the activities being allowed to occur.  Plaintiffs seek reinitiation of ESA consultation on the effects of the incidental take allowed by the MSHCP, and supplemental NEPA analysis.

New lawsuit:  Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On September 20, the Center for Biological Diversity, the Council on Wildlife and Fish, and the Alliance for the Wild Rockies sued to stop the South Plateau Landscape Area Treatment Project just west of Yellowstone National Park on the Custer Gallatin National Forest.  Plaintiffs say the 83 million board-feet of commercial timber expected to be removed is “significantly more than allowed under the Custer Gallatin National Forest Plan.”  The Project would log mature forests using a condition-based approach to NEPA compliance that does not identify specific locations.  However, it plans timber harvest or burning on 16,462 acres, including 5,531 acres of clear-cutting, 6,593 acres of other commercial harvest and 56 miles of roads in habitat designated for grizzly bears and Canada lynx.  The article includes a link to the complaint.  On September 6, the lawsuit parties also filed a notice of intent to sue under the Endangered Species Act (linked to this article).

New lawsuit

The Forest Service is suing three businesses alleging that smoke bombs — deemed illegal in California and used during an ill-fated gender reveal event — were defective, and sparked the deadly 2020 El Dorado fire in San Bernardino County.  The suit, which alleges negligence and health and safety violations, seeks unspecified monetary damages for fire suppression and investigative costs and various adverse environmental impacts.

New lawsuit

Thirty-two Wyoming residents and organizations are suing the Forest Service for allegedly choosing to not suppress the 2018 Roosevelt Fire on the Bridger-Teton National Forest during “red-flag” fire conditions.  The fire consumed more than 65,000 acres and burned 55 homes.  Using an unplanned fire to achieve natural resource benefits isn’t authorized by federal law and violates the National Environmental Policy Act, the complaint says. The document also accuses the agency of failing to consult with the U.S. Fish and Wildlife Service under the Endangered Species Act and failing to harmonize the act with the Forest Plan.

BLM

New lawsuit:  Western Watersheds Project v. U. S. Dept. of Interior (D. D.C.)

On September 14, Western Watersheds and Public Employees for Environmental Responsibility filed a lawsuit accusing the Bureau of Land Management of failing to perform required grazing permit reviews across the West.  PEER analyzed data from 1997 to 2019 on land health evaluations for BLM’s 21,000 grazing allotments, and found the 27% had not been evaluated for environmental impacts pursuant to NEPA, with an even greater proportion in important natural areas and wildlife habitat, including for sage-grouse.  The plaintiffs argue that this violates 2014 and 2015 FLPMA amendment requirements to determine priority for environmental analysis and to conduct such analyses.  The article includes a link to the complaint.

New lawsuit:  Cascadia Wildlands v. U. S. Bureau of Land Management (D. Or.)

On September 19, Cascadia Wildlands and Oregon Wild went to court to stop the Big Weekly Elk Forest Management Project on the Coos Bay District.  The Project decision is based on an EA, and includes logging uncommon mature and old-growth forests and habitat for marbled murrelets and northern spotted owls.  The news release has a link to the complaint.

PARK SERVICE

Court decision in Earth Island Institute v. Muldoon (9th Cir.)

On September 12, the circuit court affirmed the district court’s denial of Earth Island Institute’s motion for a preliminary injunction to halt parts of two projects to thin vegetation in Yosemite National Park in preparation for controlled burns.  The court held that the projects fell under the “minor change” categorical exclusion because they were “changes or amendments” to the 2004 Fire Management Plan that would cause “no or only minimal environmental impact.”

New lawsuit:  Wilderness Watch v. National Park Service (E.D. Cal.)

On September 25, Wilderness Watch, Sequoia Forestkeeper and the Tule River Conservancy filed a complaint seeking to enjoin “Fuels Reduction Efforts to Protect Sequoia Groves in Sequoia and Kings Canyon National Parks from the Devastating Effects of High-Intensity Fire,” authorized by a decision memo and using emergency NEPA procedures.  Much of the tree cutting and burning would occur in designated wilderness, with Park Service arguing that is “necessary” to violate the Wilderness Act.  The article includes a link to the complaint.

EPA

Settlement in Center for Biological Diversity v. Environmental Protection Agency (N.D. Cal.)

On September 12, the court approved a settlement agreement that commits the Environmental Protection Agency to develop a strategy to address the effects of over 300 active ingredients in herbicides, insecticides and rodenticides on ESA-listed species by 2025.  A biological evaluation to address the harms of eight especially hazardous organophosphate insecticides on endangered species is required by 2027.  The news release includes a link to the settlement and 2011 complaint.

FISH AND WILDLIFE SERVICE

On August 31, the Fish and Wildlife Service listed four distinct population segments (DPSs, see map) of foothill yellow-legged frog under the Endangered Species Act.  In the final rule, the Service identified altered hydrology, agriculture, illegal cannabis cultivation, predation by nonnative species, diseases and parasites, mining, urbanization, recreation, severe wildfire, drought, extreme flooding, and the effects of climate change as severe threats to the Frog  The species is found on national forests, and was part of a recent lawsuit mentioned here.

Noah Greenwald, director of the Endangered Species program at the Center for Biological Diversity:

Grizzlies wouldn’t be roaming the greater Yellowstone ecosystem if it wasn’t for plentiful food, and the vast wildlands of the national park that offer protections from traps, bullets, chainsaws and bulldozers. But one of the most important places for grizzlies in recent decades has been the federal courthouse. I recently reviewed every lawsuit filed on behalf of grizzlies bears during the past 30 years and it’s clear that litigation has played a pivotal role in protecting these bruins under the Endangered Species Act, ensuring they survive and thrive.

When it passed the Endangered Species Act 50 years ago, Congress recognized that implementing the law would be difficult for agencies like the Forest Service and Fish and Wildlife Service because of the likelihood of direct conflicts with powerful special interests. As an antidote, a provision was included in the law that allows private citizens to go to court on behalf of species like bears that can’t speak for themselves.

Dozens of lawsuits have been filed during the last few decades to stop logging, mining, road building, livestock grazing and other destructive projects in grizzly bear habitat. Recently the Center for Biological Diversity, where I work, stopped two massive timber sales in the Kootenai National Forest in northwestern Montana that threatened the endangered Cabinet-Yaak population of bears.  The U.S. Forest Service wanted to clearcut hundreds of acres of old forest and construct miles of new roads, which would have had devastating consequences for the grizzly bears.”

And here’s the latest effort to protect grizzly bears in a federal courthouse.   The lawsuit alleges the Idaho Department of Fish and Game killed a grizzly bear cub without authorization from the U.S. Fish and Wildlife Service, which also is named as a defendant for allegedly permitting two other bears to be killed contrary to federal regulations.

Over the Weekend – Blue Mtn. blues, Flathead secrets and monumental benefits

by

I guess this is a bookend to Sharon’s “Friday News Roundup.”

 

BLUE MOUNTAINS

I recently provided an update on the status of the Blue Mountains forest plan revisions here.   And here’s a little more detail on that, especially on the question of “access.”  (This term gets used for a couple of different things, and this one is about closing roads on national forests rather than creating access across private property to reach public lands.)

One group says its leading the charge to fight for what they call “original rights” is Forest Access for All.  “We defend the rights that we’ve had since Oregon was a territory, free reign where we go and utilize the forests which are public lands,” says Bill Harvey, a group member and former Baker County Commissioner. “A couple decades ago the Forest Service began closing off sections of the forest and that’s when Forest Access for All was formed.” Harvey says his group’s particular ire is at the Wallowa-Whitman National Forest (WWNF), which he claims “have closed thousands of miles of roads in the forest the last twenty years.”

The group also has other “conflicts” with the Forest Service include the need for  more vegetation management, economic benefits of (motorized) recreation, and better public engagement.

“By law right now, we have an open forest. They will admit it, everybody admits it, and it’s in the books, I’ve seen it a million times. It is an open access forest,” says Harvey. “Why in God’s name would we want to give that up? Nothing benefits us to give up our rights that we have currently. We’re not asking for more rights, we’re asking for the existing rights to stay in place.

I’m going to disagree with him on this one, and I hope the Forest Service does, too (although it looks like they could have done a better job of setting the locals straight on this before now).  In 2005, Subpart B of the Travel Management Rule changed the culture of motor vehicle use on roads, trails, and areas from “Open unless closed” to a system of designated routes.  As for why?  The goal was to reduce resource damage from unmanaged motor vehicle use off that road system.

 

FLATHEAD

Newly revealed emails show that the Flathead National Forest under then supervisor Kurt Steele looked to keep a proposal of a tram up Columbia Mountain from public view for more than year prior to it being first proposed.

Does this sound familiar?  It sounds to me like the “Holland Lake Model” that got the forest supervisor a “promotion” to forest planning.  In this case the Forest properly rejected the proposal as inconsistent with its forest plan (thank you forest plan!).  But it does suggest a pattern of incentives and behavior that may be broader than the Flathead National Forest.

“The process where the public comes into play is when it becomes the NEPA process,” Flathead Forest spokesperson Kira Powell said about the emails.

“Bringing you into the conversation about this potential project on the Flathead NF because it’s coming from investors who apparently have the financial resources to build a tramway, meaning they likely have political savvy also … wrote Keith Lannom, who was deputy regional forester for Region 1 at the time …”

This account offers a window into the role of “political savvy” in Forest Service decision-making.

 

ORGAN MOUNTAINS – DESERT PEAKS NATIONAL MONUMENT

Since President Barack Obama created the Organ Mountains-Desert Peaks National Monument in 2014, visitation has tripled and the national monument has spurred economic growth in the Las Cruces area as well as other communities near the national monument, according to a new report.

According to this overview, the report looks at the various factors that made this particular monument so successful, including its location relative to population centers and the uses it caters to.  Also local community support.

“We have always recognized that the establishment of the monument was due in large part to the grassroots effort at the local community organizations and individuals,” Melanie Barnes, the state BLM director, said. “And due to this engaged and proud community, the monument has seen an increase in visitation.”

She said the BLM is working on a resource management plan that will address land use and resource protection. The public scoping period for that plan recently ended.

 

Forest Plan Revision – fall 2023 roundup

by

Once upon a time, in a city far away, the U. S. Forest Service posted its schedule for revising national forest plans on its national website.  There was even a map showing the revisions completed under the 2012 Planning Rule.  Today, they are not where they used to be on the website, and I couldn’t find them anywhere else.  Maybe they didn’t like what I (or others) were doing with the information?

The last schedule that I saved was from May, 2022.  I have compiled the current information on the plans listed in that schedule and a few others that I am aware of below, roughly in order of their status, from those completed to those just starting.  I counted 14 completed and 16 officially ongoing revisions (if I have missed any, let me know).

COMPLETED REVISIONS

These plans were completed prior to May, 2022

  • Francis Marion (2017)
  • Flathead (2018)
  • El Yunque (2019)
  • Inyo (2019)
  • Chugach (2020)
  • Rio Grande (2020)
  • Helena-Lewis and Clark (2021)
  • Custer-Gallatin (2022)

The American Bar Association recently provided this favorable critique of the El Yunque revised plan.

No policy better reflects the agency’s increased awareness about the importance of understanding and utilizing local stakeholders than the 2019 plan’s “all-lands” management approach, which aims to bring landowners and stakeholders together to identify common goals for the forest.

These plans have been completed and adopted since May, 2022

  • Carson (July 8, 2022)
  • Cibola (July 15, 2022)
  • Santa Fe (July 29, 2022)
  • Nantahala Pisgah (February 2023)
  • Sierra and Sequoia (May 2023)

Here is a commentary from Wild New Mexico on the three New Mexico plans.  The Sequoia revised plan is discussed in this article.  We discussed the Nantahala Pisgah possible lawsuit here.

It’s worth noting that lawsuits against these revised plans have been scarce.  The Flathead has had two (one is discussed here)  and there is a case currently pending against the Rio Grande (discussed here).  Have I missed any?  (The Colville revised plan litigation, discussed here, was developed under the previous planning regulations.)

PENDING REVISIONS (header links are to the Forest Service web page)

  • Tonto – objection instructions letter

On May 19, 2023, the Regional Forester issued her final instructions to the Tonto Forest Supervisor and responded to the eligible objectors. These final instructions included changes the forest must make to the final plan or supporting documents before the Forest Supervisor may sign the Record of Decision and implement the new plan.  Some additional information is in this article.

  • Ashley – FEIS/plan objections

The objection filing period ended June 20, 2023. The Forest Service received objections from 14 individuals or organizations.  An objection resolution meeting was scheduled for August 28.

The proposed final plan and FEIS were released August 30 and the objection period runs until October 30.  A couple of articles covered the release – here and here.

The draft EIS was released in December, 2019.  The FEIS is listed as “Proposed” “Summer 2023.”  However, a recent article is now saying “by the end of the calendar year.”

  • Gila – draft EIS completed

The official 90-day comment period for the draft documents ended April 16th, 2020.

The draft plan and EIS were available for public comment until November 2021.  Local news suggests it’s not going smoothly:  “Personally I believe you are trying to do the best that you can,” Jeff Bilberry, chairman of the Chaves County Board of Commissioners, said to Forest Service representatives. But he added soon after, “I am going to agree with former commissioner (Will) Cavin that we need to go back and start over again and let’s do this right so we don’t have everybody sitting here wondering what is fixing to happen.”

The Manti-La Sal National Forest released its proposed Land and Resource Management Plan and DEIS on Aug. 18. Public comments on the DEIS are being accepted until November 16.

In September 2019, Forest Supervisor Chuck Mark announced the Salmon-Challis National Forest will evaluate the 1988 Salmon Forest Plan and the 1987 Challis Forest Plan separately. A new timeline will be developed once public feedback has been gathered to inform steps moving forward.

Public comments on the draft assessment were sought last summer.

  • Lolo – draft assessment completed

Public meetings are ongoing to discuss the final assessment, need for change and developing the plan.  A Notice of Intent to prepare an EIS is currently expected in January, 2024.

The Bridger-Teton National Forest aims to have the draft assessment report available for public review by late fall per this article.  (And they are getting some help.)

  • Blue Mountains (Malheur, Umatilla, and Wallowa-Whitman) – restarting assessment

The most recent effort to revise the plan failed in 2019, and now the Forest Service is restarting the process, beginning the assessment process in June and public meetings are scheduled for this fall.  Some background is provided here.

No forests in the area covered by the Northwest Forest Plan have formally started the revision process.  A Bioregional Assessment was prepared in 2020.  Based on the Bioregional Assessment findings, land management plans may be amended or revised at the same time or in groups according to common features like geography and ecosystems.

The most urgent need is to restore fire’s natural role in the frequent-fire dependent ecosystems closest to communities in the eastern Cascade Mountains, Klamath Mountains of southern Oregon and northern California, and the southern Coastal Mountains.

Based on that urgency, a cohort of northern California units and the Rogue River-Siskiyou National Forest in Southern Oregon are being considered as the first to begin plan modernization. Northern California cohort includes the Klamath and Butte Valley Grassland, Six Rivers, Shasta-Trinity, and Mendocino National Forests.

OTHER “PROGRAMMATIC” DECISIONS

On August 21, the Forest Service proposed to change the name of the Wayne National Forest in Ohio to the Buckeye National Forest.  The national forest is currently named after General (“Mad”) Anthony Wayne, whose complicated legacy includes leading a violent campaign against the Indigenous peoples of Ohio that resulted in their removal from their homelands. Buckeye National Forest is one of the names suggested to the Forest Service by American Indian Tribes.  But of course, Republicans have politicized it.

 

 

 

 

 

 

 

 

 

 

 

Public Lands Litigation – update through September 6, 2023

by

NATIONAL FOREST CASES

Court decision in Eagle County v. Surface Transportation Board (D.C. Cir.)

On August 18, the circuit court reversed a decision by the Board to allow construction of the Uinta Basin Railway connecting oil fields in Utah to a railroad along the Colorado River by 88 miles of track through the Ashley National Forest. The Forest Service had granted a permit for the railroad (but was not a party to this lawsuit).  According to the court, the environmental impact statement, which largely limited its analysis to the effects of the new construction, failed to adequately study the potential of oil spills, trail derailments along the Colorado River and the potential for wildfire in communities along tracks. It also did not address the health of the Texas and Louisiana residents who would bear the brunt of increased air pollution near oil refineries.  (This article has a link to the opinion.)

Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (D. Mont.)

On August 23, the district court vacated the “Gorilla” (GRLA) Project on the Custer-Gallatin National Forest, which had authorized logging and thinning activities on approximately 21,871 acres, because it reduced the designation of lynx habitat without formal review.  The forest plan includes direction applicable to “mapped lynx habitat” on this national forest.  The Project NEPA analysis “could not rely on Canfield (2016)’s (modified) lynx habitat map without first reviewing Canfield (2016) under NEPA—either separately or as part of the Project EIS.”  It referred to this as improper “tiering,” and held that the Forest violated NEPA by failing to take a hard look at the environmental effects of its revisions to the lynx habitat map.  (I see the problem as one of amending the forest plan without a formal process, which would also be a violation of NFMA.)  The court upheld the Forest on its determination of the wildland-urban interface to comply with exemptions from lynx management direction, and consideration of cumulative effects of a nearby timber sale on state lands.  (The article includes a link to the opinion.)

Court decision in Friends of the Inyo v. U. S. Forest Service (9th Cir.)

On August 25, the circuit court reversed the decision of a lower court that would have allowed exploratory drilling in bi-state sage-grouse habitat on the Inyo National Forest.  While a full opinion has not been released, the court apparently ruled against the use of categorical exclusions.

Magistrate findings in Greater Hells Canyon Council v. Wilkes (D. Or.)

On September 1, the district court reversed a plan amendment for national forests in eastern Oregon and Washington that would have allowed logging of trees greater than 21″ in diameter.  (The link is to our extended discussion here.)

Court decision in Center for Biological Diversity v. U. S. Forest Service (9th Cir.)

On September 1, the circuit court refused to require the Forest Service to prohibit the use of lead shot by hunters in the Kaibab National Forest to protect endangered California condors.  It specifically rejected the contention that the Forest Service inaction is violating the Resource Conservation and Recovery Act, a law that lets private organizations and individuals sue anyone who contributes to improper disposal of hazardous waste.  The ruling said that even though the Forest Service has “broad authority to regulate hunting and fishing activities,” it rarely chooses to preempt state laws (see this post for background on this issue).  This article includes a link to the opinion.

New lawsuit:  U.S.A. v. Southern California Edison Company (C.D. Cal.)

On September 1, the federal government sued Southern California Edison for damages it sustained from the 2020 Bobcat Fire that burned over 100,000 acres of the Angeles National Forest.  The Forest Service says it spent more than $56 million suppressing the fire, incurred property and natural resource damages of over $65 million, and spent $769,000 on burned area emergency response costs.  Forest Service investigators determined the Bobcat Fire started when a tree came in contact with power lines.  The article includes a link to the complaint.  (Query:  did the Forest Service count any of these burned acres as accomplishments?)

Notice of intent to sue

On September 6, the Center for Biological Diversity, Alliance for the Wild Rockies and Council on Wildlife and Fish notified the Custer-Gallatin National Forest and U. S. Fish and Wildlife Service of their intent to sue regarding the South Plateau Project’s effects on grizzly bears and Canada lynx.  The notice also criticizes the use of condition-based process to identify treatments and the logging of mature trees, and it suggests that the project does not comply with the just-revised forest plan.  (This article includes a map showing the results of the mature and old growth inventory for this part of Montana, and the mapping tool is available here.)  The NOI is available here.

Court decision in Twin Metals Minnesota LLC v. U. S. A. (D. D.C.)

On September 6, the district court dismissed an attempt by the mining company to reinstate the company’s mineral leases for its planned copper-nickel mine near the Boundary Waters Canoe Area Wilderness in the Superior National Forest, which had been cancelled by the Bureau of Land Management.  The land had then been withdrawn from mineral entry by the Department of the Interior.  The court essentially found that the mining company had no legal rights to its lease.  (The Forest Service was not a party to this case.)

Litigation follow-up

After losing two recent timber sale lawsuits (Ripley and Black Ram) involving the effects of roads on grizzly bears, the Kootenai National Forest is proposing to amend its forest plan to change the way roads are counted in areas outside of grizzly bear recovery zones (BORZ) to allow the use of temporary roads during logging projects to not count against road limits.  After admitting that, “there’s no (timber sale) project that comes across my desk that gets denied,” the forest supervisor observed, “Getting a handle on the courts would help a lot.”

Settlement regarding restoration of national forest lands

While the state had previously agreed to remove the shipping containers it had placed as barriers along the Mexican border, and had done some restoration work, they have now also agreed to pay an additional $2.1 million to fully remediate the damage to national forest lands.  Once that bill is paid, the case would be dismissed

BLM CASES

New lawsuit

The Applegate Siskiyou Alliance has challenged the BLM’s 10-year “integrated vegetation management for resilient lands program,” or IVM-RL, for more than 680,000 acres in the region, as well as the specific Late Mungers project, which involves 830 acres of commercial harvest and 7,500 acres of thinning.  Up to 20,000 acres of commercial logging, 60,000 acres of small-diameter tree thinning, 70,000 acres of prescribed burning and 90 miles of road construction would be allowed over a decade.  The BLM did not prepare an EIS and did not identify specific sites necessary for a site-specific evaluation, allegedly in violation of NEPA.

Post-litigation

As a result of previous court challenges and settlements, the BLM has produced a new proposal for a resource management plan for Colorado’s Western Slope, which is currently open for public comments.  BLM says in the draft proposal it would bar industry access to lands with “no-known, low or medium” oil potential, as well as to acres that are striking for their wildlife, conservation or wilderness values. This would be a significant reversal of the current situation – it would mean closing 80 percent of the lands in the decision area managed by the Colorado River Valley Field Office to new oil leasing and 81 percent of the Grand Junction Field Office’s lands.  It would keep 93 percent of the Colorado River Valley Field Office’s high oil and gas potential lands open to leasing, but in the Grand Junction Field Office only about 44 percent of the high oil potential area would be available for leasing.  (Interestingly, per this article, the mountain bike industry is “neutral” – “if those companies weren’t there, the roads wouldn’t be either.”)

FISH AND WILDLIFE SERVICE CASES

New lawsuit:  Center for Biological Diversity v. Haaland (D. Ariz.)

On August 22, the Center sued the Fish and Wildlife Service for reducing the previously proposed critical habitat by 90% for the narrow-headed garter snake and the northern Mexico garter snake; both are threatened species.  The reduction was the result of eliminating unoccupied critical habitat.  The riparian habitat they use is found on the Tonto, Coronado, Coconino and Prescott National Forests, and BLM and National Park lands, and occupied habitat there was designated as critical habitat.  (The news release includes a link to the complaint.)

Court decision in Center for Biological Diversity v.U. S. Fish and Wildlife Service (S.D. N.Y.)

On September 6, the district court vacated the Fish and Wildlife Service’s decision to not list the eastern hellbender as threatened or endangered. The court found that the Service unlawfully relied on conservation measures that had not yet been implemented and determined effective and that did not address sedimentation, a primary threat to the species.  The large salamander lives across the eastern U. S.  It was previously listed as endangered in Missouri.  (The news release includes a link to the opinion.)

(The Center for Biological Diversity doesn’t always win these listing/critical habitat lawsuits.  Here, they lost their challenge to a 90-day negative finding by the FWS for listing the Tucson shovel-nosed snake, the court deferring to the use of genetic testing by the Fish and Wildlife Service to define the range of the subspecies.)

Bitterroot Front Project draft

by

The Bitterroot National Forest is going to try out “condition-based” NEPA with the Bitterroot Front Project.

The project anticipates 54,046 acres of prescribed burning alone; 35,575 acres of non-commercial logging coupled with prescribed burning for whitebark pine restoration; 27,477 acres of commercial logging with prescribed burning; 16,019 acres of vegetation slashing and burning; and 3,163 acres of non-commercial logging and prescribed burning… It will take dozens of miles of roadwork to do all that.

The project is expected to take four years.  “Condition-based” means they don’t know where any of these things are going to happen until they get there.  From the EA, as the project proceeds …

Information about proposed activities, including maps, treatment unit tables, and the activities’ relationship to the Bitterroot Front project’s overall treatment thresholds, would be available on the Bitterroot National Forest website. The responsible official would finalize proposed activities only after field review of existing conditions. The responsible official would retain the authority to make final decisions about the location, extent, and types of activities planned and completed under the Bitterroot Front project.

Nothing said here about the process they’ll follow to evaluate and disclose that new information they find when they get there, in particular about site-specific effects. They seem to be taking the position that “this is it” for NEPA compliance:

By preparing this environmental assessment (EA), the Forest Service is fulfilling agency policy and direction to comply with the National Environmental Policy Act (NEPA) requirements and to determine whether the effects of the proposed action may be significant enough to require the preparation of an
environmental impact statement (EIS).  (EA, p. 1)

The EA says, “if an EIS is required, the Forest Service will prepare an EIS consistent with 40 CFR section 1501.9(e)(1).”  I know this is the theory, but how often does a draft EA get redone as a draft EIS after public comment makes the case for significant effects?  Usually the agency makes that call early enough to not create the extra step of an EA.   The agency has plenty of examples of timber sales much smaller than this that had “significant” environmental effects documented in an EIS, but they seem kind of committed to an EA.

This years-long project is being pursued under emergency authority, so there will be no administrative review.  So if the Forest stays this EA course here, the emergency determination would allow local officials to make the call on whether they think this EA would hold up in court.

The “implementation plan” in the EA says that the obligation during implementation is to “Demonstrate that the effects of implementation would be within the scope of activities and the range of effects described in the EA and authorized in the Decision Notice.”  This would be an effects analysis, which would trigger consideration of NEPA.  It could answer the question of whether the effects have become significant (triggering an EIS for the whole project), but apparently is not intended to address the question of whether the site-specific effects have been accounted for pursuant to NEPA after the locations and treatments are known, and whether they are “consequential” (in a NEPA sense).

Where courts have approved of approaches like this it has been where the “conditions” are very specifically defined in the initial decision so that there is not much flexibility in implementation and the site-specific effects can be determined and evaluated.  It doesn’t look to me like the Bitterroot Front is similar to the two favorable court examples I’ve read, but it does feel like the familiar pushing of the envelope to see how far they can take this approach.

So, while I think an EA (with no administrative review) in these circumstances seems like kind of an outrageous idea, I actually wanted to focus on another familiar issue this article brings up:

Critics of the proposal argue that the significant removal of vegetation — including live trees and brush and standing and downed dead timber — will actually promote wildfire spread by allowing uninhibited wind to whip flames through opened-up forest that’s been dried by more wind and sun penetration…

A body of science supports the idea that “forest treatments” — a regime of logging, thinning and burning — can reduce wildfire risk on a landscape and make firefighting efforts more successful. But critics of widespread forest treatments can point to other studies that cast doubt on their efficacy, and on the idea that forests in western Montana used to be dominated by spread-out Ponderosa pine with frequent low-severity fire.

I hope the EA has a good discussion of the science on both sides.  But that last point is a new one to me.  Several national forests in Montana with dry forest habitats have revised their forest plans, and included desired vegetation conditions, which are supposed to be derived from historic conditions.  I don’t think I’ve heard much disagreement with establishing “spread-out Ponderosa pine with frequent low-severity fire” as a desired condition for places similar to the Bitterroot.  Have I missed something?  (Or did the author misinterpret something?)

Here’s what I find in the EA (based on “a geospatial analysis of the Bitterroot Front project area to prioritize communities at risk from large wildland fire growth”):

Modeling results of the current conditions within the project area show that the forest is at extreme risk of a catastrophic fire. The modeled outputs from the present fuel arrangement conditions do not mimic the natural fire spread type for sustainable ecosystem management in the Bitterroot National Forest.

Part of the proposed action is:

Restoring and maintaining ecosystem health by continuing to move the fire regime condition class toward the desired future condition through continued treatments that create disturbance.

Most of the discussion in the EA seems to be about the existing fire risk rather than whether that risk is “natural fire spread type.”  According to the Vegetation Specialist Report, “Overall, the desired future condition includes forest structures, composition, and processes that would have been present historically.  It proceeds to offer a description of “warm/dry” and “cool/moist” vegetation types.   If there are truly disagreements about the desired condition of vegetation or fire regime for these types or areas, alternatives should be considered.  (Under the 2012 Planning Rule, these desired conditions should be found in the forest plan.)

Then there is the question of, “whether the forest plan should be amended for elk habitat objectives, snags, old growth, and coarse woody debris standards to accomplish the project objectives.”  This all comes off looking like they are revising their (very old) forest plan for half of the forest, with new desired conditions and standards, using a project EA.

 

 

House of Representatives v. BLM – monuments and the public lands rule

by
Grand Staircase – “visitutah.com” (Larry C. Price)

Dismissal of a lawsuit against President Biden’s proclamation restoring the boundaries of the Grand Staircase and Bears Ears national monuments allows the NEPA process to develop a management plan for these areas to proceed unhindered.  Biden ordered the BLM to work on replacing the Trump Administration’s resource management plan, and the BLM published its draft RMP on August 11 for public comment.

BLM may proceed unhindered, that is unless Congress decides to hinder them.  The FY2024 Interior, Environment, and Related Agencies Bill the House Appropriations Committee passed in July, which the full House of Representatives is expected to vote on in September, includes a rider that would require the BLM to manage the Grand Staircase NM in accordance with the plan finalized after Trump reduced the monument.

Which is the better planning process – RMPs based on public involvement through NEPA or RMPs based on appropriations riders?

The bill would also deny funding to implement the BLM’s public lands rule (a popular topic with many posts here from Sharon).  Another bill would force BLM to withdraw the rule (without considering all those public comments).

Kya Marienfeld, wild lands attorney for SUWA, called the Utah congressional delegation’s lack of support for the state’s public lands disappointing but adds that opposition is offset by more enlightened members of Congress who actively support the Grand Staircase and other public lands.

Appropriation riders seem to be kind of crap-shoot in the turmoil of budget negotiations, so I have no idea what the betting line would be on President Biden signing off on this one.  The “more enlightened members of Congress” may have more of an influence on defeating the withdrawal proposal.  Is that a bad thing?

 

 

Recent Endangered Species Act Litigation – August 2023

by
The York fire burns Joshua trees in the Mojave National Preserve in California on Sunday, July 30.                                                                                                 Ty O’Neil/AP

Court decision in Wilderness Watch v. U. S. Fish and Wildlife Service (D. Mont.)

On August 2, the district court granted a preliminary injunction against the construction of a pipeline (including heavy machinery, temporary roads and disturbance of the land) to benefit Arctic grayling in the Red Rock Lakes Wilderness of in a national wildlife refuge in southwestern Montana.  The court held, “Ultimately, in light of the Wilderness Act’s strict requirements, the mere possibility that the proposed action may aid in Arctic grayling conservation is not enough to create necessity.”  The possible availability of alternatives that would not affect the wilderness character was also a factor working against a finding of necessity.  (The article has a link to the opinion.)  A lawsuit against the FWS decision to not list the grayling as threatened or endangered is pending (described here).

Notice of Intent to Sue

On August 3, WildEarth Guardians notified the U. S. Fish and Wildlife Service of its intent to sue the agency for denying its petition to list the Joshua tree under the Endangered Species Act.  The FWS decision followed a previous lawsuit where their previous denial was reversed due to inadequate consideration of the effects of climate change.  This notice cites climate-related wildfires and lack of regeneration.  (The press release includes a link to the Notice.)

Settlement of Red Wolf Coalition v. U. S. Fish and Wildlife Service (E.D. N.C.)

On August 9, the FWS, Red Wolf Coalition, Defenders of Wildlife and Animal Welfare Institute signed a stipulated settlement agreement to resolve this case filed in 2020.  This followed a preliminary injunction against a 2015 agency policy prohibiting the release of captive red wolves into the Red Wolf Recovery Area (focusing on the Alligator River National Wildlife Refuge) where the court held, “reversal of the prior policy to release captive red wolves into the wild population and engage in proactive and regular adaptive management to address coyote hybridization have had significant adverse impacts and will hasten the extinction of red wolves in the wild.”  The FWS agreed to cooperatively develop and publicize red wolf release plans for the next eight years.  (This article includes a link to a press release that links to the settlement agreement.)

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (M.D. Fla.)

On August 9, CBD and Nokuse Education, Inc. sued the FWS for denying protection to the gopher tortoise under the Endangered Species Act, stating, “Unfortunately, a mere three percent of the gopher tortoise’s historical longleaf pine ecosystems currently remain, and all upland habitats frequented by the tortoise are steadily being degraded and destroyed by encroaching development, poor habitat management, and climate change.”  Gopher tortoises in parts of Louisiana, Mississippi and western Alabama are currently protected, but those in in Florida, Georgia, South Carolina and most of Alabama are not.

Court decision in Center for Biological Diversity v. Haaland (D. D.C.)

On August 11, the district court agreed with plaintiffs that, while the Fish and Wildlife Service had created plans for three wolf subspecies, those plans are in three distinct regions of the United States (northern Rocky Mountains, Mexican wolf and eastern timber wolf) and left 44 states where the gray wolf is listed as endangered without a wolf recovery plan.  The judge refused to dismiss the case against the FWS, but the ultimate relief has not been determined.  The ruling would not directly impact wolves in Alaska, or the northern Rocky Mountain states of Idaho, Montana and Wyoming, as well as wolves in certain portions of Oregon, Washington and Utah.

Court decision in Natural Resources Defense Council v. U. S. Fish and Wildlife Service (D. D.C.)

On August 11, NRDC prevailed for a fourth time in its pursuit of protection for the rusty patched bumblebee.  This time a court invalidated the determination by the FWS that designation of critical habitat would not be “prudent,” an exception sometimes allowed by ESA.  The bee is native to the upper midwest, and has been found on the Chippewa National Forest.

 

A success story or a future lawsuit?

The U.S. Fish and Wildlife Service has proposed to remove the Apache trout from the list of threatened species.  It is found in the White Mountains on the Apache-Sitgreaves National Forest, and the Forest Service is credited with assisting the White Mountains Apache Tribe and others with habitat restoration and non-native fish removal to support recovery of the species.

“There’s been good progress toward bringing Apache trout back from the brink of extinction, but it’s way too soon to strip protections for these remarkable fish,” said Robin Silver, of the Center for Biological Diversity. “Their habitat has been hammered by grazing and fires, and they won’t survive without the Endangered Species Act’s safeguards. Non-native trout and growing dangers from climate change also jeopardize the trout’s survival.”