Interior West

Lawsuit against water diversions on the Sawtooth

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Nearly two dozen water diversion projects in central Idaho’s Sawtooth Valley are harming federally protected salmon, steelhead and bull trout, according to the Idaho Conservation League (and this article).

Specifically, the lawsuit says the Forest Service in 2001 prepared environmental documents called Biological Assessments and found most of the 23 diversions are “likely to adversely affect” one or more of the protected species.

Those assessments were sent to Fish and Wildlife and NOAA Fisheries. But in June 2001, NOAA Fisheries notified the Forest Service, according to the lawsuit, that the additional information was needed to begin the consultation. The lawsuit says the Forest Service never followed up with that additional information.

“More than 16 years later, the Forest Service continues to authorize these 23 diversions to be used, operated, and maintained without ESA consultation, even though sockeye salmon, Chinook salmon, steelhead, bull trout, and their habitat have been, are being, and will continue to be harmed by the diversions,” the lawsuit says.

Once an agency decides that a proposed action is likely to adversely affect a listed species it has to formally consult with the appropriate agency (in this case, Fish and Wildlife Service for bull trout and NOAA Fisheries for salmon and steelhead).  If they haven’t done it, it’s kind of an open-and-shut case – one that would be a good candidate for settlement.  Under ESA, there should have been a 60-day notice of intent to sue, which should have led to discussions that might have avoided a lawsuit.  Not sure what happened here.  (If there have been more recent reauthorizations with a finding of “no effect,” that would complicate things.)

Local plans for federal lands – the latest

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This is a continuation of the “sagebrush rebellion” in the form of local government plans that purport to exert local control over federal land management.  They are being peddled to rural counties by Karen Budd-Falen, an attorney with a history of promoting private property rights (who some expect to be the new director of the BLM).  Since she certainly knows what she is talking about, she must also know that there is no legal basis for some of the expectations she is generating.  It’s just another way of stirring up local sentiment against federal land management.

A new local plan was just adopted in Oregon:

Earlier this month, Crook County leaders passed a plan designed to give county residents more say in how local public lands are managed by the federal government. However, discussions over how the plan will be implemented and what it will mean for the county’s oft-contentious relationship with its local public land managers are just getting started.

In addition to articulating county priorities for how federal land should be managed with regard to mining, agriculture and recreation, the plan states that the county expects state and federal agencies to meet with county officials on an ongoing basis.

Still, Michael Blumm, professor of law at Lewis & Clark College in Portland, said federal agencies don’t have any obligation to follow the county priorities set out in the plan, which range from mandating no reduction to grazing allotments on federal land, to ensuring that roads providing access to public lands stay open year-round.  “It’s a political move,” he said. “It’s not legally enforceable.”

And another is being discussed in Montana:

A controversial land-use attorney drew more than 100 protesters and as many supporters to Hamilton Middle School Saturday, but the topic of her talk with county residents was interpreted differently by people attending the event.

Budd-Falen’s talk centered around having a more detailed county land-use plan that would be used to strengthen its own management desires carried out by federal agencies, including the Forest Service. She said that federal policymakers in Washington, D.C., were out of touch, and local governments could help guide more micro-level policies.

While Budd-Falen never spoke about public land transfer, state Sen. Jennifer Fielder, R-Thompson Falls, gave a presentation about her efforts to support federal land transfer to states. 

Actually Ravalli County has already has a “natural resource use plan” it developed in 2012, and Commissioners changed their minds about asking Budd-Fallon to speak about adding “teeth” to it (she was invited instead by a local state representative).  Maybe their experience with that plan has helped them understand that its greatest value is probably in helping them articulate their interests rather than as something to beat up the Forest Service with.

Court buys FS interpretation of viability for bighorn sheep

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On July 31, the federal district court for Wyoming found that the revised Medicine Bow National Forest Plan met the requirement of the 1982 planning regulations to manage habitat “to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.”  At issue was the meaning of additional language in the regulation that “habitat must be well distributed so that those individuals can interact with others in the planning area.”  The court determined that, “there is no requirement that the Forest Service manage habitat so as to maintain bighorn herds, at maximum potential, across the entire Forest, at all potential habitat locations…”

There are three reintroduced herds of bighorn sheep on the national forest.  The plan would only protect two of those from exposure to disease risks from domestic sheep, which is the major risk factor for bighorns, by eliminating domestic sheep grazing.  The small unprotected herd was stable but had never thrived, and was considered a low priority by the state of Wyoming.  The court found that the viability regulation was ambiguous and the agency’s interpretation in this case had changed during the administrative review.  Nevertheless it held that the record adequately explained the agency’s interpretation that protecting the two herds from domestic sheep and providing other plan direction that would benefit all three herds would meet the viability requirement:

“The Regional Forester made the determination, given all information available to him, that emphasizing domestic sheep grazing over the Encampment River herd in the Sierra Madre range, the Medicine Bow National Forest would still be able to manage the habitat of the Laramie Peak and Douglas Creek herds in order to achieve viability of bighorn sheep.”

The court found that this was determination was not arbitrary or capricious.  (Biodiversity Conservation Alliance v. Jiron)

When the locals pay for national forest fuel reduction …

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Everybody wins?

“So were Flagstaff officials prescient when they proposed what, at the time, was one of the first municipal partnerships with a national forest to have lands outside city boundaries thinned at city expense?”

“Hindsight is 20-20, but it sure looks that way to us. Armed with a $10 million budget, the Forest Service immediately went to work on an environmental study that mapped the most fireprone timber stands as well as nests of endangered Mexican spotted owls.  Steep slopes most prone to erosion were pegged for less-harmful cable logging, and some stands of old-growth ponderosas were declared off limits. Using collaborative tactics learned from 4FRI, the draft EIS containing a thinning plan was ready in near-record time and drew no lawsuits that would cause delay.”

Could that be because there’s no revenue or profit motive driving more destructive logging practices?

Forest Service wins A to Z

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The Ninth Circuit affirmed the district court denial of a preliminary injunction for the North Fork Mill Creek A to Z Project on the Colville National Forest, which has been discussed here. Of note, the question of contractor-NEPA was not addressed, although the court said that the Forest Service “reviewed and approved” the EA, and “The Forest Service subsequently retracted and revised the EA to address concerns raised by the public.”

That’s right, an EA on a 13,000 acre logging project with some at-risk species. How could that be? The short answer is essentially full mitigation of effects. For pine marten and fisher, the plaintiffs agreed that goals in the forest plan would protect the habitat, and that the project was consistent with those goals by correctly identifying the habitat and leaving it alone. The legal arguments they made were more technical and weaker. So, while there are some differences here from the Colorado Tennessee project in lynx habitat, it appears that the Colville forest-wide conservation strategy for these species also simplified the project NEPA process. Full mitigation basically also occurred for sediment and open road density (It also probably didn’t hurt that, “The project was the result of a multi-year collaboration among elected officials, environmental organizations, Native American tribes, the timber industry, and community organizations.”  And maybe that had something to do with why the FS agreed to this degree of mitigation.)

The opinion includes an interpretation of the 2012 Planning Rule’s requirement for the use of the “best available scientific information in the forest planning process” (despite the fact that the new Planning Rule does not apply to either the existing plan or to any projects). Quoting a Ninth Circuit case: A party challenging the Forest Service’s scientific analysis cannot simply “cite studies that support a conclusion different from the one the Forest Service reached” and must instead provide “scientific studies that indicate the Forest Service’s analysis is outdated or flawed.”

History of logging in Montana

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The Missoulian is running a series of articles on this subject.  The one in Sunday’s paper asks these questions about the future:

“Banishment from the national forests would doom many Montana timber towns to welfare status, according to advocates in the wood-products industry. But if they’re dependent on access to public timber, isn’t that another form of welfare? Does my family’s tradition of working in the woods entitle it to public subsidy, especially if the commercial market finds Montana’s wood products uncompetitive? Does rescuing Montana’s timber industry justify rewriting some of the nation’s bedrock environmental protections, changing access to its court system, and spending millions of its tax dollars?”

Federal lands support diverse economies

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Recent research by Headwaters Economics asked whether federal lands are an economic liability or an asset to rural communities (summarized in this opinion piece).

On average, we find that from 1970-2014, rural counties with the most federal land grew much faster than similar counties with the least federal land: population grew four times faster, employment grew three times faster and personal income grew twice as fast. Per capita income grew slightly more in places with more federal lands.

This analysis suggests that, in general, federal lands do not inhibit a community’s economic growth. On the contrary, the research suggests these lands have the potential to contribute to a prosperous rural economy.

You can always pick on the details of economic analysis, but here is what this tells me about the big picture.  While there will always be winners and losers, it’s hard to argue that the presence of federal lands is a big reason for the losers.

Forest/BLM planning avoids sage grouse listing; states don’t like that

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While the wisdom of Congress prevents the U. S. Fish and Wildlife from saying so, the agency’s draft of the decision to not list the greater sage grouse under ESA states:

“The Federal Plans establish mandatory constraints and were established after notice and comment and review under the National Environmental Policy Act (NEPA).  Therefore, changes to the Federal Plans would require additional notice and comment and further analysis under NEPA. All future management authorizations and actions undertaken within the planning area must conform to the Federal Plans, thereby providing reasonable certainty that the plans will be implemented.”

In 2010, the FWS had found that sage grouse were warranted for listing, in part because of the lack of adequate regulatory mechanisms.  The new draft concludes now that, “regulatory mechanisms provided by Federal and three State plans (those with the greatest regulatory certainty) reduce threats on approximately 90 percent of the breeding habitat across the species’ range.”  This was a determining factor in reaching the “not warranted” conclusion this time.

Success?  Officials in Idaho and Nevada and some mining companies sued the federal government over new restrictions on mining, energy development and grazing that are intended to protect the sage grouse.

Idaho Gov. C.L. “Butch” Otter said Friday that federal officials wrongly ignored local efforts to protect the bird, leading him to sue in U.S. District Court in Washington, D.C.  “We didn’t want a (threatened or endangered) listing, but in many ways these administrative rules are worse,” the Republican governor said in a statement.  A similar lawsuit was filed in Nevada by an attorney for two counties and some mining companies.

If these plaintiffs are successful in rescinding the federal plan amendments, the decision to not list the sage grouse would probably no longer be justified (state plans are much more voluntary), and it shouldn’t take the FWS too long to rewrite their conclusion.  But I guess that is what the commodity interests want.

The Forest Service as Noah

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High-elevation headwater streams that provide refuge for native bull trout and cutthroat trout would remain cold enough even under the worst warming scenarios to protect and support them. These streams, in places like Central Idaho’s White Cloud Mountains, can carry these native trout through the global warming bottleneck – when many species will disappear – that scientists say the world faces even if nations are able to stop the rise in greenhouse gases. “They are like Noah’s ark for bull trout and cutthroat,” Isaak said.

In February, Isaak and Young briefed forest officials and others working collaboratively across Idaho to restore the health of forest ecosystems while providing jobs for rural communities. The briefing gave local land managers like those on the Boise National Forest a chance to see how their plans fit into these “climate shields.” “There were a few areas in the Lowman District and in the upper Boise,” said David Olson, a Boise National Forest spokesman.

Said Isaak: “The hope is that the information provides a strategic tool that can be used to make more efficient local investments in stream restoration and protection projects, so that the broadest possible distributions of cutthroat trout and bull trout remain later this century.”

Isaak’s Noah’s ark approach won’t just help aquatic species, but also can help managers determine what other habitat will remain viable as warmer winters, earlier runoff and increased wildfire accelerate with warming temperatures. Wolverine biologists are looking at many of the same areas, Young said. Pika, lynx and other mammals that depend on cool summers or good snowpack may find refuge in Idaho’s high country.

This story describes a concrete step towards being strategic about climate change by identifying areas that should be used to build the ‘ark.’  Unfortunately, it doesn’t make the connection to national forest plans, where strategic choices about management priorities need to be made.  It will be interesting to see how the Nez Perce-Clearwater forest plan revision incorporates this strategy.