Diversity and species conservation

Court vacates Colville NF project and parts of its revised forest plan

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This was going to be a “featured” case in a litigation summary post, but it turned out to be long enough for its own post.  Besides, forest plan litigation is rare, especially Forest Service losses, and this case covers a number of NFMA and NEPA issues that are frequent topics on this blog.  (And, full disclosure, I had something to do with it.)

  • Court decision in Kettle Range Conservation Group v. U. S. Forest Service (E.D. Wash):  Sanpoil clean

On the first day of summer, the district court vacated the decision for the Sanpoil Project on the Colville National Forest, and also vacated the relevant portions of the 2019 revised forest plan.  The portions of the revised plan at issue replaced the Eastside Screens 21-inch diameter limit with a guideline to protect large trees, but included many exceptions.  It also did not designate a minimum amount of old growth habitat to retain.

The court held that, “the agency failed to explain how the 2019 Forest Plan maintains the viability of old-growth-dependent species.”  More specifically, “the agency erred by failing to demonstrate that its data and methodology reliably and accurately supported its conclusions about the viability of old-growth dependent species under each planning alternative, and depicted the amount and quality of habitat.”  (Note that the Colville plan was revised under the 1982 planning regulations, which had somewhat different language describing wildlife viability.  However, this court did not rule on substantive compliance with the NFMA requirement, but rather found a failure to demonstrate compliance due to an inadequate administrative record based on the APA.)

The Forest stated that the selected alternative, Alternative P, provided a “high” viability outcome for these species and that the no-action alternative would not improve viability outcomes.  However, in the EIS, the data showed that “the No Action alternative provides more habitat than the selected alternative for three of the surrogate species,” and “creates the most late structure of any alternative.”  The Forest relied instead on an appendix in an associated Wildlife Report that employed a Bayesian belief model to assign letter grades to viability, which supported the rationale for selecting Alternative P.  The court explained:

Neither the EIS nor the Wildlife Report describe how the agency came to these scores for each species and action alternative. The agency did not define its methodology for assessing the letter grades, such as what factors it considered and the weight they were given. The grades assigned to each planning alternative lack explanation…  the agency acted arbitrarily and capriciously when it offered explanations that ran counter to the evidence before the agency and failed to satisfy the requirements of the NFMA.

The court also found that the Forest failed to discuss the amount and quality of habitat and population trends (a requirement of the 1982 regulations).

The court also held that the forest plan EIS violated NEPA by failing to meaningfully address the original Eastside Screens Report.  The Forest simply argued that it needed more flexibility to achieve the desired conditions, including avoiding numerous site-specific amendments to deviate from the diameter limit in the Eastside Screens.  The Forest failed to include the original Eastside Screens Report in its administrative record, and did not adequately respond to public comments about the Eastside Screens.  The court stated:

Its absence demonstrates that the agency failed consider the scientific rationale for adopting the 21-inch rule before deciding to discard it. The agency did not respond to viewpoints that directly challenged the scientific basis upon which the final EIS rests…  In doing so, the agency violated the NEPA. The absence of the Eastside Screens Report also demonstrates that the agency did not consider an important aspect of the issue, as required by the APA.

… the agency did not consider negative impacts, if any, from (1) elimination of the 21-inch rule or (2) retention of the exceptions in the new guideline. The NEPA requires the agency to discuss and not improperly minimize negative effects of a proposed action…  In this case, the EIS did not assess how often the new guideline’s exceptions will be invoked and how the exceptions may impact the agency’s conclusions about the environmental effects and species viability.”

The Sanpoil Project also violated NEPA.  The EA simply assumed that the new forest plan guideline would protect old-growth trees.  The court held:

This conclusion was contrary to the evidence. The Sanpoil Project EA did not specify the frequency of which the new guideline’s exceptions would be invoked, despite the 2019 Forest Plan’s stated objective of preserving old-growth trees. The agency is not required to catalogue specific trees that will be removed, but in this case, the agency was required to provide site-specific details at the project planning stage to provide a sufficient picture of the Sanpoil Project’s cumulative effects… Without sufficiently specific information about site impacts, the Sanpoil Project’s impact to old-growth trees and their dependent species is speculative.”

(This overlaps to some degree the issues surrounding “condition-based NEPA.”  The court even cites the Forest Service Handbook: “If the Agency does not know where or when an activity will occur or if it will occur at all[,] then the effects of that action cannot be meaningfully evaluated.”  It also is difficult to demonstrate consistency with the forest plan if the project documentation does not provide information about how a project is meeting forest plan requirements.)

The project also violated NEPA and NFMA by conducting “cursory analysis” of the effects of the project on gray wolves, wolverine, sensitive bat species, northern goshawk, and the western bumblebee.  Finally, the court found that NEPA requires an EIS for the Sanpoil Project because it “creates uncertain risks to old-growth forests and the wildlife dependent on them, and “sets a precedent for future actions that utilize the new old-growth guideline, each of which may be individually insignificant, but create a cumulatively significant impact when applying the new guideline.”  Moreover, the lack of quantified or detailed information about the Sanpoil Project’s impacts in this respect “is also highly controversial due to the same questions about its size and nature and effect of the action on old-growth dependent species.”

The court found that this “case” was ripe for judicial review “when the agency issued RODs for both agency actions” “because the Sanpoil Project is a site-specific action governed by the 2019 Forest Plan.”  The plaintiff had argued that forest plan decision challenge was ripe because it dealt with a forest-wide viability requirement rather than timber sale requirements found not ripe by the Supreme Court in its Ohio Forestry decision.  However, the plaintiff also argued that ripeness of forest plan issues could be based on this project decision implementing the plan.  It is not completely clear which rationale the court is employing.  The court also found that the plaintiff had exhausted administrative remedies by identifying large, old trees, wildlife viability and the Eastside Screens “thoroughly and consistently during the public comment process.”

TGIF TSW Random News Roundup

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F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.

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Feel free to add your own “news of the week” in the comments.

Are large, eastside grand firs friend or foe?

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Large-diameter grand fir (Abies grandis) in a mesic, mixed-conifer forest of northeast Oregon. Credit: Conservation Science and Practice (2023).

A new release from a some of our favorite authors about the proposed amendment to the Oregon and Washington Eastside Screens forest plan requirements – the “21-inch rule.”  The primary focus is summarized here (and there is a link to the research paper):

“Interest is growing in policy opportunities that align biodiversity conservation and recovery with climate change mitigation and adaptation priorities. The authors conclude that “21-inch rule” provides an excellent example of such a policy initiated for wildlife and habitat protection that has also provided significant climate mitigation values across extensive forests of the PNW Region.”

Until I saw this photo, I had imagined an army of evil grand fir trees sneaking up under pines and larch, and stealing their water and threatening to burn them up.  They seem to be the Forest Service’s Enemy #1 these days in eastern Oregon and Washington.  So dangerous, in fact, that the agency undertook another dreaded forest plan amendment process to give the agency more weapons to fight off this scourge.

This paper portrays them in a much different light, as providing benefits to both carbon storage and resilience to fire (along with their original wildlife protection benefits targeted by the original Eastside Screens amendment) – and NOT posing a substantial barrier to fuel treatment.

“The key rationale for amending the 21-inch rule is that increased cutting of large-diameter fir trees (≥53 cm DBH and <150 years) is needed to facilitate the conservation and recruitment of early-seral, shade-intolerant old ponderosa pine (Pinus ponderosa) and western larch (Larix occidentalis) by reducing competition from shade-tolerant large grand fir (Abies grandis) (USDA, 2021).

This represents a major shift in management of large trees across the region, highlighting escalating tradeoffs between goals for carbon sequestration to mitigate climate change, and efforts to increase the pace, scale, and intensity of cutting across national forest lands. The potential impacts of removal of large grand fir on wildfire are unclear, although a trait-based approach to assess fire resistance found that the grand fir forest type had the second highest fire resistance score, and one of the lowest fire severity values among forest types of the Inland Northwest USA (Moris et al., 2022).

Large ponderosa pine co-mingle with large grand fir about 14% of the time (259 plots), leaving 86% of plots with large ponderosa pine without large grand fir (1616 plots). Similarly, large western larch co-mingle with large grand fir about 56% of the time. Large ponderosa pine and grand fir are found together on only 8% of all plots in the region, while large larch and grand fir are found together on only 4% of all plots in the region.  (I added the emphasis for clarity.)

Enhancing forest resilience does not necessitate widespread cutting of any large-diameter tree species. Favoring early-seral species can be achieved with a focus on smaller trees and restoring surface fire, while retaining the existing large tree population.”

If nothing else, these conclusions clearly refute the Forest Service argument that reducing fire risk is “impossible” without logging the few (but important) large grand fir trees.

New CEQ Guidance on Habitat Connectivity

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Cascade Forest Conservancy

On March 21, the Council on Environmental Quality provided “Guidance for Federal Departments and Agencies on Ecological Connectivity and Wildlife Corridors” to federal agencies.  The Forest Service was a member of the working group that developed this guidance.

“Connectivity is the degree to which landscapes, waterscapes, and seascapes allow species to move freely and ecological processes to function unimpeded. Corridors are distinct components of a landscape, waterscape, or seascape that provide connectivity. Corridors have policy relevance because they facilitate movement of species between blocks of intact habitat, notably during seasonal migrations or in response to changing conditions… Increasing connectivity is one of the most frequently recommended climate adaptation strategies for biodiversity management.”

“To the maximum extent practicable, Federal agencies are expected to advance the objectives of this guidance by developing policies, through regulations, guidance, or other means, to consider how to conserve, enhance, protect, and restore corridors and connectivity during planning and decision-making, and to encourage collaborative processes across management and ownership boundaries. Any existing corridor and connectivity policies or related policies should be updated as needed to align with the objectives in this guidance. Federal agencies should have new or updated policies ready to implement by the first quarter of 2024 and make their policies publicly available. Federal agencies should also actively identify and prioritize actions that advance the objectives set forth in this guidance.”

“Federal agencies should not limit engagement in restoration activities only to circumstances when restoration serves as a mitigation strategy to compensate for adverse impacts from projects or actions. Instead, Federal agencies should consider where there are opportunities in their programs and policies to carry out restoration with the objective of promoting greater connectivity.”

One of the specific “focal areas” listed in the memo is “forest and rangeland planning and management.”  “Connectivity and corridors should factor into high-level planning and decision-making at Federal agencies as well as into individual decisions that lead to well-sited and planned projects.”  “In carrying out large-scale planning required by statutory mandates (citing NFMA and FLPMA) Federal agencies should consider updating inventories of Federal resources under their associated management plans to assess connectivity and corridors.”

The Forest Service 2012 Planning Rule already includes language requiring that forest plans address connectivity as part of its wildlife viability considerations.  I had something to do with that, but I was regularly disappointed in the agency’s unwillingness to “think outside the green lines” about how species occurring on a national forest depend on connectivity across other land ownerships, so I’m always happy to see someone try to make them do that:

“Ecological processes and wildlife movement are not limited by jurisdictional boundaries. Therefore, Federal agencies should seek active collaboration and coordination with other Federal agencies, Tribes, States, territorial, and local governments, as well as stakeholders to facilitate landscape, waterscape, and seascape-scale connectivity planning and management, and consider appropriate collaboration with other nations. Prioritization and strategic alignment of connectivity efforts across partners improves the effectiveness of each entity’s activities and enables larger-scale conservation, enhancement, protection, or restoration to occur.”

“Federal agencies with investments on Federal lands or in Federal waters adjacent to designated areas that may have conservation outcomes (e.g., National Park System units, national monuments, national forests and grasslands, national marine sanctuaries, national estuarine research reserves, wilderness areas, national wildlife refuges, etc.) should explore collaborative opportunities to enhance connectivity across jurisdictional boundaries.”

These kinds of initiatives seem to come and go, but we should at least expect to see the land management agencies tell us what they think under this administration by next year.  If anyone happens to notice, let us know!

What Aspects of Wolf Management are the Responsibility of the Forest Service? Potential CBD Lawsuit

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Colorado wolf photo from CPW
Thanks to the non-paywalled Cowboy State Daily...here’s the link.

Wolves that cross the border from Colorado into Wyoming may be shot on sight, and it’s up to the U.S. Forest Service to stop it, an environmental group claims.

The Center For Biological Diversity plans to file a lawsuit against the Forest Service in U.S. District Court unless the agency steps up to protect the wolves. That’s what the group claims in a letter sent to USFS and U.S. Department of Agriculture officials. The Forest Service falls under the USDA’s jurisdiction.

The possible lawsuit may initially seem like a legal dead end, because the Forest Service doesn’t manage wolves.

The Wyoming Game and Fish Department has jurisdiction over wolves in Wyoming, and the Colorado Parks and Wildlife Department is primarily in charge of the growing wolf population in that state.

But the Forest Service does have authority to shut down wolf hunting in its jurisdiction – and indeed already has shut down prairie dog shooting in parts of Wyoming, the Center for Biological Diversity claims in its letter.

In the case of wolves, the group argues that the Forest Service should declare a no-kill zone on the Medicine Bow-Routt National Forest, headquartered in Laramie.

Center for Biological Diversity attorney Collette Adkins told Cowboy State Daily on Thursday that she couldn’t discuss the pending case in detail. However, she affirmed the group’s stance on the Forest Service having authority to stop hunting in some instances.

“That’s not a question at all, and forest supervisors do that regularly for various reasons, including for protecting an endangered species,” she said.

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Despite not having any wildlife management authority in Wyoming, the Forest Service still has authority to ban the killing of wolves on the Medicine Bow-Routt National Forest, thus giving them at least some degree of protection, the Center for Biological Diversity claims.

The agency has been negligent in that regard, the group says.

“The U.S. Forest Service has not issued any orders to close wolf hunting or trapping or otherwise protect wolves on the Medicine Bow-Routt National Forest,” the group’s letter states. “Nor does the Land and Resource Management Plan for the Medicine Bow-Routt National Forest have any standards or guidelines aimed at conserving wolves.

“In fact, the Forest Plan, developed in 2003, includes no mention of wolves at all.”

I wonder if that’s because there were not wolves there then?

Here’s the FS side on the prairie dog shooting question..

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.

“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”

Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.

However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.

The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.

“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”

Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.

However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.

What Does CASPO Listing Mean and How Does the Process Work?

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Larry frequently cautions us about the different kinds of owl habitat, so I thought I’d post this handy table from the 2019 Forest Service CASPO conservation strategy.

Anonymous posted this link under “Topics of Interest”. It says it’s a proposed rule..

We, the U.S. Fish and Wildlife Service (Service), propose to list two distinct population segments (DPSs) of the California spotted owl (Strix occidentalis occidentalis), a bird species from California and Nevada, under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the California spotted owl. After a review of the best available scientific and commercial information, we find that listing the Coastal-Southern California DPS as endangered is warranted, and that listing the Sierra Nevada DPS as threatened is warranted. Accordingly, we propose to list the Coastal-Southern California DPS as an endangered species under the Act and the Sierra Nevada DPS as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’). If we finalize this rule as proposed, it will add these two DPSs to the List of Endangered and Threatened Wildlife and extend the Act’s protections to them.

She/he/they added .. “including a bunk 4(d) rule.”

Steve posted on the E&E news story here.

Claudia Elliott asked how this determination of “threatened” might change the management of giant sequoias and asked for our help and insights. Also, she asked what is a 4(d) rule?

It would be great if someone could explain the steps in the process from here on in, and especially how that ultimately gets translated into management direction, including where the public might be involved. Thanks!
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We can also discuss 2ndLaws comment under Steve’s post. Hopefully it won’t be confusing to focus all the current CASPO discussion on this thread. Here’s 2nds comment:

This listing announcement is foreshadowing a aggressive program of “logging it to save it” even though it is well-established (thanks to the state-and-transition models used by carbon scientists) that the adverse effects of fuel reduction logging, plus unavoidable wildfire, are worse for spotted owls than the effects of wildfire alone, due in large part to the low probability that fuel logging will interact with wildfire during the brief period that treatments are effective.

Raphael et al (2013) used a state-and-transition model to explore the effects of landscape fuel reduction logging on spotted owls and found:

Active fuel reduction activities in moderate habitat contributed to substantial short-term (simulation years 0 to 30) population declines under the larger area, higher intensity scenarios. … The combination of BDOW interactions and high-intensity, larger-area treatments contributed to the most substantial NSO population bottlenecks. … It appears that management regimes that take out owl habitat through treatments (either current or potential future) do not reduce the amount of habitat that is lost to wildfire enough to make up for the habitats lost through treatments.

Principle Investigator: Dr. Martin G. Raphael. Project Title: Assessing the Compatibility of Fuel Treatments, Wildfire Risk, and Conservation of Northern Spotted Owl Habitats and Populations in the Eastern Cascades: A Multi-scale Analysis. JFSP 09-1-08-31 Final Report, Page 19. http://www.firescience.gov/projects/09-1-08-31/project/09-1-08-31_final_report.pdf.

The Grizzly in the Driveway by Rob Chaney: Book Review and Discussion

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First of all, I would recommend reading this book, and possibly giving it as a gift to people with TSW-like interests.

Rob Chaney, well-known journalist and currently Managing Editor of the Missoulian, is the author.  He’s got a strong background in this and other federal lands issues, knows and interviews many of the key people, and tells great stories.  The stories alone are worth the price of admission.  Naturally, I disagree with his views on all kinds of topics, but I both learned much from, and was greatly entertained by his stories.

Apparently there are internet communities around specific bears as Chaney discusses in the chapter titled “Ursus arctos Facebookii.”  There’s also a discussion of drone-induced wildlife harassment (where do all those videos come from anyway?).  More generally, there’s much of interest in this book, and Chaney is an excellent writer.  In fact, you can see in the photo that I placed so many tabs for things I considered to be interesting.. well, there’s so many it held me up from writing this review. Where to start?

The grizzly is Nature’s performance-enhancing drug.

Yest taking that drug, while it may make you better, it will also extract a price. Because what do you do when you enter the wilderness? You meet the wild. You meet thunderstorms that rattle your teeth, rivers that rip your boots off, and , just maybe, a grizzly bear that might maul you.  You measure yourself against the Universe, see how infinitesimally tiny you are compared to the indifferent cosmos, and yet you come out somewhat enlarged.

Take the bear out of the temple, and the magic becomes indifferent.  The thunderstorms and rivers and mountain peaks don’t look you in the eye.  They don’t pass judgment on your worthiness, or edibility, or threat potential.  It’s not anthropomorphizing to say the grizzly makes a decision about any encounter between the two of you, once in which you have virtually no standing to justify or sway.  As the Glacier Park t-shirt says “Some days the bear gets you; some days it just walks away.” Get sanctified by a a grizzly bear, and you wear a pan-denominational robe of glory.

Anyone with any affinity for wilderness longs for that kind of transfiguration.  That promise that if I go in deep, I will return empowered, enlighted- or at least verified as beyond merely human.

I used to call the attitudes of some folks “carnivolatry.”  This isn’t, strictly speaking, accurate, as it seemed to be mostly about wolves and grizzlies (an omnivore) and not so much about mountain lions. “Transfiguration,” “sanctified” and all spiritual/religious terminology.  Personally, I like Wilderness as a place to be with (usually) fewer humans and (usually) more quiet.  Being challenged by large animals is not part of what I go there for; in fact, it’s a bit of a pain for me to follow the grizzly rules as I like to be there alone.  That’s why I prefer places without them. But I’d never read about these religious views before “temple”  “magic” and so on.

I like this quote about the Wilderness Act:  “the result is a law commanding preservation of places never well understood for relatively undefined purposes.”

And how Native Americans (who disagree among themselves, as he notes) and Tribal sovereignty might influence decision-making.

“Some people derive life-changing benefit from seeing a grizzly. What is that worth? How does a Hindu explain to a Muslim that in India a cow is sacred and must be allowed to wander in the streets unmolested, until it wanders across the border into Pakistan , where it’s a commodity to be eaten and tanned into leather? How do I tell a Hutterite Farmer on the Rocky Mountain Front that my grizzly siting is worth his family having to live behind electric fences? All those precepts get thrown in a blender when North America’s sovereign Indian Nations get involved. And they have, in a big way.”

Then there’s the spiritual rights argument..

Does an Indian making a spiritual-rights claim by protecting a grizzly bear from a hunter actually commit hunter harassment, a criminal offense in Montana, Wyoming and Idaho? Or would the protection be a treaty-backed, constitutional exercise in Freedom of Religion?

It is the position of the FWS that they cannot consider the religious implications of their delisting decision because this would conflict with the ESA,” the tribal attorneys wrote in Crow Tribe vs. Zinke. This position is in violation of RFRA  (Religious Freedoms Restoration Act) and is arbitrary and capricious.

There’s a section on women in Indigenous traditions and shamanic work, including the work of Barbara Tedlock.

There’s a whole chapter called “The Bear on the Bicycle” about biking and bear conflicts, which I’m sure is of interest to many.  And other recreationists that were not around in the past.. like endurance runners.

Such runners routinely race fifty miles across the Bob Marshall core in a dayy, on a route that professional outfitters like Smoke Elser spend a week leading dudes on horseback through the most productive grizzly habitat in the Lower 48. Few can afford the thousands of dollars such guided adventures cost. Fewer still have the stamina to “Bag the Bob” in a twenty-four-hour ultramarathon. Yet both groups claim a vested interest in teh heart of the biggest bit of landscape in the contiguous United States that grizzly bears still call home.

Who am I to tell the runners to stay home? I was out there too, packing a three-ounce titanium cooking post instead of an outfitter’s cast-iron skillet. I enjoy the assistance of modern technology in ways that don’t involve wheels.

The Endangered Species Act asks people to think about what adjustments we’re willing to make for other forms of life. National surveys show most people support such sacrifices. This breaks the debate down to two questions.  First, do we want to keep having wild grizzly bears? If no, then the Endangered Species Act “problem” goes away with them.

But if we say yes, we want grizzlies, then the debate becomes all about limits and sacrifices.  Not only loggers and miners, but bikers and hikers must leave something on the table for the bear.

It does seem a bit ironic that “loggers” who came to grizz country were bad news for coming in and cutting trees..and miners, whose behavior was fairly predictable,  but the various forms of recreation reach much further, more regularly, and for all seasons of the year.  Maybe the bear would be better off if the loggers and miners returned, and all varieties of recreationist were excluded.  Just a thought.

Anyway, there are many possible discussion topics in this book.  The comments below will remain open if you want to read the book and discuss further.  As you can tell from the tabs in the photo, I only touched upon a few of the interesting things in this post.

Eagle Take Permitting Streamlining USFWS Rule

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Jon and SJ’s discussion of owls reminded me. of this proposed reg about eagles.

I don’t really understand too much about this proposed rule, but I do like what appears to be the capability of FWS to have already figured out that something they did in 2016 isn’t working and needs to be changed.. and they are changing it.  It also looks like “permitting reform.”

We propose amendments to these regulations to better align with the purpose and need described in the 2016 PEIS. In the 2016 Eagle Rule, the Service sought to:

(1) increase compliance by simplifying the permitting framework and increasing certainty;

(2) allow for consistent and efficient administration of the program by Service staff;

(3) regulate based on best available science and data; and

(4) enhance protection of eagles throughout their ranges by increasing implementation of avoidance, minimization, and mitigation of adverse impacts from human activities.

Since implementation of the 2016 Eagle Rule, it has become clear that the Service’s amended permitting structure did not fully achieve the goals of the 2016 PEIS. For bald eagles, populations have continued to grow. While this is good news in terms of preserving the species, it also means that bald eagles are interacting more often with human activities and infrastructure, resulting in a higher demand for permits authorizing the disturbance take and nest take of bald eagles. The current permit framework places an administrative burden on the public and the Service that is not commensurate with what is required to effectively preserve bald eagles. For golden eagles, a goal of the 2016 Eagle Rule was to increase compliance and improve consistency and efficiency relating to permitting golden eagle take at wind-energy projects. However, those goals have not been realized. While participation in the permit program by wind energy projects has increased since 2016, it still remains well below our expectations. Low application rates and permit-processing requirements that some have perceived as burdensome have resulted in few permits being issued for wind projects as compared to the number of operational wind projects in areas where golden eagles occur. As a result, golden eagles continue to be taken without implementation of conservation actions to offset that take.

The current permit framework places an administrative burden on the public and the Service that is not commensurate with what is required to effectively preserve bald eagles.

I think that’s probably true of many areas in the broad area of permitting.

Also perhaps someone could explain.. as to the golden eagles, are they saying that people are taking eagles without permits? Wouldn’t that require some enforcement action? Or is it too hard to figure out who is doing this?  Hopefully someone out there knows more about this.

I did find some news stories about the broader topic of wind farms and eagles, but not about these tweaks to the regs.

TSW Weekend Roundup

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Please add other news items of interest in the comments.

Senate Energy Hearing on a Potpourri of Bills.. check out the different FS vs. BLM testimony on the same topics…

Here’s a post from Wildfire Today that shows the locations on the video of different times of interest.

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Could the proposed Sequoia bill have lit a fire under the FS feet (or the WH or Dept’s) to let them use existing emergency authorities?

Sometimes this is part of the “behind the scenes” cycle.  1. Congressional types want something to happen. 2. Admin doesn’t like being told what to do. 3. Comes up with “hey the Agency can already do it… if we let them..”. Therefore we don’t need legislation.  4. Congress loses attention. 5. Admin and interest group alllies stop supporting intervention and/or intervention is defeated in court.  6) Return to step 1 but if and only if Congress maintains attention AND interested Congressionals have enough clout to make things happen.

I have seen this happen most notably with Condition Based NEPA and bug projects.

We perhaps see this in the Sequoia Bill testimony from the FS. Perhaps the door will open for more uses of the emergency provisions- or, if the opening was directed to reduce Congressional interest in the Sequoia bill, perhaps not.

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From E&E News..

Crockett said the agency supports several goals of the forest-thinning bill, S. 4904,introduced by Manchin and ranking Republican John Barrasso of Wyoming (E&EDaily, Sept. 22). But officials have “multiple concerns” with the bill’s language on forest-thinning targets, Crockett said. That bill, titled the “Promoting Effective Forest Management Act,” calls on the Forest Service to report regularly on whether land it manages is a net emitter or absorber of carbon on a regional basis.

It would also rein in the Biden administration’s efforts to define, take inventory of and potentially further limit timber harvesting on old-growth and “mature” forests — a section of the legislation that Crockett said the agency wants to “better understand” and help revise.

During the hearing, Sen. Steve Daines (R-Mont.) promoted his S. 2561 to undo the 9th U.S. Circuit Court of Appeals’ ruling in Cottonwood Environmental Law Center v. Forest Service that has resulted in longer consultations between the Forest Service and the Fish and Wildlife Service on certain forest management projects. He pointed to support for undoing the ruling from federal officials, including during the Obama Daines’ bill, which would clarify that new consultations on forest management plants aren’t required when new information about potential impacts on endangered species emerges, passed the committee by voice vote in July, over objections from Sen. Ron Wyden (D-Ore.) (E&E Daily, July 22). Daines said he’d like to see it attached to any revived permitting reform bill from Manchin.

Question to Oregonians… why does Wyden not support the Cottonwood fix?

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David Hayes is leaving the WH.. is that good news for people hoping to not have to deal further with MOG? Rumor has it that he was the main push. for the effort.   Only time will tell.

Interesting take on MOG and carbon in the NE by Yale scientists.

Note that I got pushback on this blog for stating “Dead trees sequester no carbon” which is actually pretty obvious. I didn’t say they can’t store carbon. And these scientists say the same:

When a tree dies from logging or on its own, that tree is no longer going to be sequestering carbon, and the carbon from that tree is eventually going to go back into the atmosphere.

Eagles Permitting EA from Nossaman blog.

On September 30, 2022, the U.S. Fish and Wildlife Service (Service) published a proposed rule to amend its eagle permit regulations (Proposed Rule) administered in accordance with the Bald and Golden Eagle Protection Act (BGEPA). The Proposed Rule seeks to improve administration of the eagle permit program by establishing a general permit pathway for eligible wind energy and power line applicants for incidental take of golden eagles and bald eagles. Eligibility criteria proposed by the Service for participation in the general permit program include factors such as eagle abundance and nest proximity. The Proposed Rule also establishes general permits for disturbance of bald eagle nests and removal of bald eagle nests under most circumstances. At the same time, the Service has published a draft environmental assessment evaluating alternatives to its proposed general permits. The Proposed Rule arises as part of a court settlement from a lawsuit brought by the Energy and Wildlife Action Coalition challenging the eagle permit regulations. The public will have until November 29, 2022 to submit comments on the Proposed Rule.

And this from the Center for Western Priorities:

The Biden administration is proposing a new permitting program to address the issue of wind turbines killing bald and golden eagles, without slowing down the construction of new wind energy projects. Bald eagle numbers have quadrupled since 2009 to about 350,000 birds, but there are only about about 40,000 golden eagles left.

The proposal, which comes after several major utilities have been federally prosecuted in recent years for killing large numbers of eagles without permits, calls for new permits tailored to wind-energy projects and power line networks. U.S. Fish and Wildlife Service Director Martha Williams said the new program would provide “multiple pathways to obtain a permit” while also helping conserve eagles.

Federal officials have declined to say how many eagles are killed illegally by wind farms each year. Last year, companies were permitted to “take” 170 golden eagles—meaning that many birds could be killed by turbines or lost through impacts on nests or habitat, according to permitting data obtained by The Associated Press. Companies are responsible for offsetting each death by ensuring at least one eagle is saved somewhere else.

 

Future webinars of interest:

A webinar on geothermal via the WGA (Western Governors’ Association), Oct. 6

Sparking Solutions: Reducing Risk at the Wildland-Urban Interface from RFF (Resources for the Future). Oct. 12

Reporter Questions on Emergencies and Litigation and the Sequoia Emergency Response Approved

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Figure 5: Indian Basin Grove ladder fuels in 2022 which reach into the crowns of the sequoias. Many of the dead trees
have already fallen and are adding to the surface fuels that can burn at high intensity and kill the sequoia roots. This is
another example of a Giant Sequoia Grove with no recent fire history. Indian Basin Grove is proposed for emergency fuels treatment.

 

A journalist contacted me and asked about the Region 5 Sequoia Emergency Response letter. This emergency uses 36 CFR 220.4.

(b) Emergency responses. When the responsible official determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and any required documentation in accordance with the provisions in §§ 220.5, 220.6, and 220.7 of this part, then the following provisions apply.

(1) The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources. When taking such actions, the responsible official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical.

(2) If the responsible official proposes emergency actions other than those actions described in paragraph (b)(1) of this section, and such actions are not likely to have significant environmental impacts, the responsible official shall document that determination in an EA and FONSI prepared in accord with these regulations. If the responsible official finds that the nature and scope of proposed emergency actions are such that they must be undertaken prior to preparing any NEPA analysis and documentation associated with a CE or an EA and FONSI, the responsible official shall consult with the Washington Office about alternative arrangements for NEPA compliance. The Chief or Associate Chief of the Forest Service may grant emergency alternative arrangements under NEPA for environmental assessments, findings of no significant impact and categorical exclusions (FSM 1950.41a). Consultation with the Washington Office shall be coordinated through the appropriate regional office.

(3) If the responsible official proposes emergency actions other than those actions described in paragraph (b)(1) of this section and such actions are likely to have significant environmental impacts, then the responsible official shall consult with CEQ, through the appropriate regional office and the Washington Office, about alternative arrangements in accordance with CEQ regulations at 40 CFR 1506.11 as soon as possible.

 

Here’s a link to a CEQ guidance letter from 2020.  I guess I never really got in my head the “immediate threats to valuable natural or cultural resources” angle in addition to “public health or safety”. Seems like Sequoias certainly fill the bill.

Specifically the reporter asked:

1) is there a way to find/track ongoing litigation and results on each forest?

2) Is there anyone who knows the ins and outs of using this legal framework (knowledgeable party without direct interests)

My questions are:

4) (I asked this in the Hazard Tree post, but we can discuss here) how often has this Chief’s authority been used and for what kind of projects?

5) can the use of these different Emergency Responses (Chief or CEQ)  be litigated? If so, what is the history on that?

Anyway, here are links to the Sequoia Emergency Response approval letter.. DECISION MEMORANDUM_FOR THE CHIEF_R5_EmergencyResponse_GiantSequoia and below are the recommendations. Photos and more explanation and specifics in this  Enclosure_GiantSequoia_EmergencyResponse_withAppendices_July2022 (1)

 

Approve the proposed emergency response for NEPA compliance under 36 CFR 220.4(b)(2) with associated conditions so that the Sequoia and Sierra National Forests can immediately
implement fuels reduction treatments within 12 Giant Sequoia groves.

Proposed Emergency Response:
1. Grant authorization to begin the fuels reduction treatments on approximately 13,377 acres (displayed in attached maps) prior to completion of the documentation of the Categorical
Exclusions (four) and Environmental Assessments and FONSIs (three).

2. For the four Categorical Exclusions, exclude the requirement at 36 CFR 220.6(e) to document a decision to proceed with an action in a decision memo for certain Categorical Exclusions.

3. For the three Environmental Assessments and FONSIs, exclude the requirement at 36 CFR 220.7(c) to document a decision to proceed with an action in a Decision Notice if an EA and FONSI have been prepared.

Associated Conditions:
4. Ensure compliance with other laws, such as Endangered Species Act, National Historic Preservation Act, and Clean Water Act are in place before implementation of the fuels treatments.
5. Ensure all required consultations and permitting have been completed before implementation of the emergency fuels treatments. Emergency provisions may be employed where necessary, such as emergency consultation under ESA.
6. Stakeholders will be notified of the approved emergency response.
7. For those projects which have not initiated public or tribal involvement, initiate public scoping and tribal engagement within 45 days of approved emergency response actions. Continue engagement with the Giant Sequoia Working Group and Giant Sequoia Lands Coalition.
8. Monitor the effects of the actions subject to emergency response. Reconsult with my office through the Director of Ecosystem Management Coordination if monitoring reveals effects outside of those disclosed in the ongoing environmental analysis.
9. The intent is to complete the Emergency Response for Emergency Fuels Treatments by the end of 2023, however emergency fuels treatments may occur through 2024. The Pacific Southwest Region will provide regular implementation progress updates. An annual review will be conducted to re-evaluate the need for the emergency response.
10. All other proposed actions in the EAs and CEs which are not part of this