Condition-based project in Georgia

We’ve discussed “condition-based” NEPA analysis and its legal implications – mostly thinking about timber management.  Here’s the Foothills Landscape Project, affecting 157,000 acres on the Chatahoochee-Oconee National Forest.  It raises the usual concerns about  NEPA sufficiency (it’s an EA, which was a key factor in the Tongass case injunction).  Here’s how it works, according to the EA:

The locations and timing of treatments would continue to be selected and prioritized using a systematic process that evaluates restoration needs, determines appropriate treatments to address those needs (through use of decision matrices) and balances implementation of those activities with operational feasibility, agency capacity, and social considerations, to the extent possible.

But apparently no further consideration of environmental impacts.  Here’s a statement that caught my eye, because the whole point of NEPA (as stated in many court opinions) is to analyze effects before you take action, whereas it sure looks like their intent is to act and then see what the effects are:

If, as a result of monitoring, the effects of activities require management or maintenance treatments that fall outside of the treatment toolbox options assessed within this EA and the forthcoming decision, additional analyses could be warranted.

I’ve also got NFMA concerns if what they are doing is establishing new long-term management direction (which should be in a forest plan) without going through the forest planning process.  How are “project design” requirements different from forest plan standards?

But what was new to me was the application to developed recreation sites, as described here:

On the recreation side, the project looks to make strides to improve the visitors’ experiences by enhancing existing trails and campsites that are used heavily while closing those that are not rarely used and no longer sustainable.
“We don’t have any specific proposals in any specific campground, but we are going to look at the conditions in areas that make sense … “We don’t have a lot of hard proposals, but basically we just want to make investments in areas that have high resource protection and high visitors’ satisfaction,” Grambley said. “We’re proposing reroutes to properly layout trails because we realize that a lot of our trails go straight up a ridgeline and we don’t want that because it causes erosion and it’s not fun to hike quite honestly. So we want to make the trails more sustainable and more-friendly layouts.”

These sound like the kinds of priorities that a forest plan should establish.  But when we want to implement them?  Just trust us to know what “makes sense.”

 

150,000 acre “project” on the Bitterroot

Well, not exactly, maybe.  This could be a good example of how to get the public involved early enough in the process for timber harvest decisions that the locations have not been determined yet.  But consider that the decision-maker is the same one who applied “condition-based” NEPA analysis to the Prince of Wales area of the Tongass, which has ended up in court.

Bitterroot National Forest Supervisor Matt Anderson has added a new “pre-pre-scoping” stage to the process, not part of the traditional process in which a set of options is presented to the public for review and analysis.

The new approach is meant to get the public involved prior to coming up with any specific actions being planned for any specific location.

That much I like the sound of.

“There is confusion,” said Anderson. “It’s hard for the public to get involved. We are asking ‘What do you want to see? What’s your vision?’” He said the agency was “starting at the foundational level, not any particular location.” He said it was important to get to those particulars but the way there was to first describe the “desired future condition that we want and then look at the various ways we can achieve it.”

Asked about the fact that the current Forest Plan describes a desired future condition for the Bitterroot Front that involves returning it to primarily a Ponderosa pine habitat with little understory, Anderson said that is in the current plan, but that the plan is about 30 years old. He said a lot has changed in that time on the ground. There have been lots of fires and areas where no fires have occurred, and the fuel load has gotten extremely high. He said current conditions need to be assessed and they were currently compiling all the maps and other information they need to get an accurate picture of what is on the ground today in the project area.

This should raise a concern about how this process relates to forest planning, since forest plans are where decisions about desired conditions are made.  However, old forest plans typically didn’t provide desired conditions that are specific enough for projects, so that step has occurred at the project level.  Under the 2012 planning rule, specific desired conditions are a requirement for forest plans, but the Bitterroot National Forest is not yet revising its plan. Whatever desired conditions they come up with should be intended as part of the forest plan, and the public should be made aware of this.  If the new decision is not consistent with “Ponderosa pine habitat with little understory,” they’ll need an amendment to be consistent with the current plan.  (I’d add that changes in the on-the-ground conditions over the last 30 years shouldn’t necessarily influence the long-term desired condition.)

“The Tongass is so different than the Bitterroot,” said Anderson. “There is not much similarity. I’m not trying to replicate that process here. It was a conditioned-based process up there. It’s like comparing apples to oranges.” In reference to conditioned-based projects, he said, “One difference with this project is that some of that will be pre-decision and some of that will be in implementation. We are trying to shift some of the workload to the implementation stage.”

He said they have a slew of options, from traditional NEPA, to programmatic NEPA to condition-based NEPA “and we are trying to figure it out.”

He insists that the NEPA process will be followed with the same chance for public comment and involvement on every specific project that is proposed in the area.

There’s some ambiguous and possibly inconsistent statements there.  Condition-based NEPA seeks to avoid a NEPA process “on every specific project.”  I could also interpret shifting workload to “pre-decision” and  “the implementation stage” is a way to take things out of the NEPA realm.

And then there’s this:

In response to the notion that the huge project is being driven by timber targets and not health prescriptions, Anderson said that the Regional Office had set some timber targets for different areas of the region, but that those targets were not driving the analysis.This project has nothing to do with meeting any target,” said Anderson.

This feels a little like “There was no quid pro quo.”  Would timber harvested from this project not count towards the targets?  (I’d like to see  targets for achieving desired conditions.) All in all this project would be worth keeping an eye on.

(By the way, here’s the latest on Prince of Wales.)

Midwest timber wars revisited

For the first time in nearly three decades, the Shawnee National Forest in Illinois has proposed a commercial timber harvest of mostly native oaks and hickories. And environmental activists whose high-profile fight against logging in the 1990s led to a 17-year moratorium are once again raising alarms.

Lisa Helmig, acting forest supervisor with the Shawnee National Forest, said the plan is rooted in the best available science about how to maintain the keystone oak ecosystem that is native to the Shawnee foothills.  “The oak ecosystem has been in place here in the central hardwood region for 5,000 years,” she said. But Helmig said the ecosystem is at risk due to a lack of natural or man-made disturbances, such as fire, storms and, yes, even logging. Without these disturbances, non-native, shade-tolerant sugar maple and beech trees sprout up and fill in the forest’s midstory, she said.

The activists have filed an objection, based largely on their past experience with timber harvest on the Forest.

The trees that have grown up to replace the harvested oaks and hickories are mostly 28-year-old stands of “undesirable” beeches and maples.  “When you think about how many oaks were here, it’s heart-wrenching,” Wallace said “Had they not cut the oaks, we’d have oaks here,” Stearns added. In addition to the Farview site, in their letter they write that we also returned to the North End Ecological Restoration project logged in Pope County in the late 1990s. “Little to no oak and hickory have been visibly restored.” They cited other examples, as well.

This is the root of their concern: What the Shawnee National Forest’s leadership claims is happening isn’t.

Asked about their concerns, Helmig said that her “gut reaction” is that the Forest Service likely didn’t follow through with what should be a multiphase treatment. Helmig said she’s confident that the Forest Service is committed to seeing (this) project through… “We have a wonderful silviculturist on staff now,” Helmig said. “He’s been here five years and is absolutely fantastic.”

Hopefully we can assume that there has been a science-based determination that ecological integrity requires regenerating some young oaks and hickories.  But implementation unfortunately still boils down to “trust us,” and “we’re different now.”   (But then the Forest evicted the media from the objection meeting, wrongly according to the Washington Office.)

Forest Service not sued on timber project

I couldn’t find the project files for the Gatton’s Park fuels treatment project in the Upper Mimbres Valley on the Gila National Forest, but it seemed like it has a lot of features that make it a good example of how to not get sued –

The Nature Conservancy received an initial Collaborative Forest Restoration Program grant for planning the project from 2012 through 2014; when the National Environmental Policy Act process was finished, the Grant Soil and Water Conservation District was awarded an additional grant and took over implementation of the plan beginning in January 2018.

In addition to local residents and logging businesses, the county government, the Forest Service, firefighters, conservationists and wildlife habitat advocates are also seeing the benefit of working together.

So far, thinning has reduced fuels from 50 tons per acre down to 15 tons in treated parts of the 1,500-acre project area and reduced fuels by half in other treated parts of the project area — something that will give residents on the edge of the Gila Forest in the Gatton’s Park development, in particular, a better chance of surviving a wildfire without catastrophic damage. The border of forest land and developed land is known as a “wildland urban interface.”

Partido emphasized the difference between a regular timber contract and the current project. Both attain forest management goals, especially in the area of fire prevention, but the Collaborative Forest Restoration Program is more efficient. “There hasn’t been a timber sale in these parts since the 1950s,” Partido said.

Part of the silvicultural prescription provided by the Forest Service — the tree plan — also takes into account habitats for the threatened Mexican spotted owls in the Gila. Trees over certain diameters are left in place — as are trees with holes where owls might nest.

What happens to the trees that are cut? The two contractors are either bringing the logs to sawmills and making poles and other products out of them or turning them into wood chips — piles of which are regularly offered to anyone who wants to come pick them up, for free. “Some of the ponderosa logs will be brought to the Celebration campground and other campgrounds for people to use,” Carver said.

A big timber project gets a big lawsuit

(Clear-cutting in the Tongass Forest, Alaska | by musicwood)

 

Over the years, the Forest Service has dreamed of being able to do “big gulp” projects, or in contemporary terms, “landscape scale” projects. These essentially amount to doing one EIS for a large area and a long time period before the actual locations and treatments have been determined. There are many of these in progress now across the country, and the approach is being tested (again) in court in Alaska on the Tongass National Forest. This Earthjustice news release includes a link to the complaint (filed May 7), which includes the following:

The Prince of Wales Landscape Level Analysis Project (the Project) in the Tongass National Forest includes extensive old-growth and second-growth logging. The project area is roughly 2.3 million acres. The project area contains about 1.8 million acres of national forest land. The Project authorizes logging of up to 656 million board feet (mmbf) of timber. The U.S. Forest Service (Forest Service) estimates that this logging would occur on over 42,000 acres. The Forest Service estimates about 164 miles of roads associated with the logging would be constructed as part of the Project. The Record of Decision authorizes implementation of the Project to take place over a span of fifteen years.

The Forest Service has authorized this Project using an approach that has been soundly rejected by the courts. The agency authorized the Project before identifying specific locations for logging or road construction. As a result, the FEIS does not adequately describe the direct, indirect, or cumulative impacts of the Project on the human environment or on subsistence uses.

In the 1980’s, the Forest Service lost at least two court decisions for failure to provide adequate site-specific information and analysis in the environmental impact statements (EISs) for Tongass timber sales. City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985); City of Tenakee Springs v. Courtright, No. J86-024-CIV, 1987 WL 90272 (D. Alaska June 26, 1987). In subsequent Tongass timber sale EISs, the Forest Service began including comprehensive, detailed quantitative and qualitative descriptions of the logging and road access plans for each harvest unit proposed for sale. When it did so, the courts upheld the adequacy of the site-specific information. Stein v. Barton, 740 F. Supp. 743, 748-49 (D. Alaska 1990).

The FEIS’s Response to Comments states that “it is not possible to determine all of the direct, indirect, or cumulative impacts to wildlife habitat or connectivity that could result from this project before implementation.” Implementation of a particular part of the project has begun, apparently with no project-specific NEPA planned to determine those effects. Plaintiffs necessarily are challenging the entire project decision for violation of NEPA (and ANILCA) procedures.

There is a related NFMA issue that results from the Tongass forest plan imposing data requirements on projects that are hard to meet at this large scale, making the project inconsistent with the forest plan.  While this involves specific language in the Tongass plan, all forest plans explicitly or implicitly require certain analysis prior to projects.  The bigger the area, the harder that is to do.  And the trend of recent plan revision documents is to put off decisions about things like ecological integrity until project planning.  If successful, this could create an imposing analytical burden for large-scale projects like this one.

They are still going to have to do a site-specific NEPA analysis somewhere. The end result of all this may be that the Forest Service will create another level of planning and NEPA for “timber programs.” Just like the old days, except now added to the existing current plan and project level processes.

Disagreement About Fuel Treatment: Exhibit A?

Still More Agreement About Fuel Treatment: Conservation Colorado and former Secretary Zinke

Sharon said:

That’s why I’m thinking that finding some projects that entail:
1. FS clearcutting in California
2. Fuel treatments in backcountry
3. Fuel treatments taking out big fire-resilient (living?) trees

Would help us understand exactly what the issues are.

I think this project might be a good place to start:

Destructive wildfires along the California-Oregon border in recent years has the U.S. Forest Service pursuing projects to clear forests of burnt debris and trees that could feed future fires. One of those projects included selling the rights to log old-growth trees in Northern California, until a federal judge halted the timber sale on Friday.

Environmental groups asked a federal court to halt the Seaid-Horse timber sale in the Klamath National Forest. They say it would violate the Northwest Forest Plan by clear-cutting protected old-growth trees and harming Coho salmon.

Its purpose is: “Reduce safety hazards along roads & in concentrated stands, reduce fuels adjacent to private property, & to reduce the risk of future large-scale high severity fire losses of late successional habitat.”

So it’s got California, clearcutting, fuel treatment and big trees.  It’s also got wildlife issues, which is the other point of disagreement I suggested.  Maybe not back-country, but certainly not front-country – mid-country? 

It even comes with a spokesperson who is probably familiar with our questions:

Western Environmental Law Group attorney Susan Jane Brown says old-growth trees in Northern California provide a habitat for threatened species such as the northern spotted owl. They’re also the most resilient in enduring wildfires.

“We could agree that cutting small trees is a good thing to reduce fire risk, but when it comes to cutting very large, very old trees, that’s an entirely different matter,” Brown said.

 

 

Fuel treatments to save an endangered species

The case of the Mount Graham red squirrel seems to be another example of where everyone agrees that fuel treatments make sense.  According to the U. S. Fish and Wildlife Service, loss of habitat to fire is the primary threat to this species.  The draft recovery plan was revised in 2011 largely due to unanticipated increases in the fire threat.  It describes management occurring on the Coronado National Forest:

The Pinaleño Ecosystem Management (PEM) demonstration project, implemented from 2000
through 2008, is a large project in the mixed conifer zone of the Pinaleños. The PEM project
involved thinning, piling, burning, and sometimes broadcast burning in an area occupied by the
Mount Graham red squirrel, northern goshawk, Mexican spotted owl, and numerous USFS
Sensitive Species.

Currently (2011), the Coronado National Forest has also proposed a larger fuel reduction and forest restoration project called the Pinaleño Ecosystem Restoration Project (PERP). This project is designed to help reduce the threat of catastrophic wildfire in much of the remaining mixed
conifer zone, and will begin to set the forest on a trajectory that will allow a low-intensity fire
cycle. Large-diameter trees, snags, and logs of all canopy species will be retained, while select
smaller-diameter under- and mid-story trees will be removed to achieve desired forest conditions
(considering species composition, life form structure, and landscape matrix of age classes). The
mixed conifer forest currently has the largest block of remaining squirrel habitat, and monitoring
of impacts to the red squirrel and its habitat is incorporated into the project’s design. This
project is currently undergoing formal consultation, and will take a decade or more to complete.
The success of this project in reducing the threat of stand-replacing wildfire, while having
minimal short-term impact on the Mount Graham red squirrel, will be key to setting the stage for
recovery of the species.

The project was ongoing in 2015, and there was apparently no litigation.  (The Center for Biological Diversity has been active in challenging the main human threat – astronomers.)  The key seems to be the mitigation measures that led to the FWS concluding there would be “minimal short-term impact” (and the squirrel’s limited range of around 12,000 acres probably helps).  How then to interpret this statement in a story about a fire there this summer?

“Until they do something with the Endangered Species Act, we’re going to continue to have these (fires) because they don’t let them thin the mountain up manually because of the squirrel,” Weech said.

Custer-Gallatin wins salvage logging lawsuit

On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

Blankenship Vegetation Project Update

You may remember thisblankenship-veg-project project from this post, in which I asked for volunteers to learn about it. No one ever volunteered, but here we are. The project apparently treats 1100 acres in the 40K acre project area.

I still think it would be better policy if we had an open dialogue with folks like AWR about why AWR thought there were lynx and why they thought the project would hurt them with the rest of us able to read the FS documents and chime in. It would have been interesting and a learning experience for everyone. Wouldn’t it be interesting if there were a policy experiment that before any (fuels treatment?) project (less than 2000 acres?), future plaintiffs were required to engage in a public discussion about their claims? It seems like it would be a more open and transparent process… and at the end of the day the lawsuit could still be brought so no legal rights would be violated (as far as I can tell.)

Here’s the link to the Great Falls Tribune article:

U.S. District Judge Brian Morris has sided with Lewis and Clark National Forest in a lawsuit brought by the Alliance for the Wild Rockies to block a forest logging/prescribed fire project in the Little Belt Mountains to address aging stands of timber.

The Alliance alleged in the February 2014 lawsuit that the forest violated the Endangered Species Act, the National Environmental Policy Act and the National Forest Management Act when it approved the Blankenship Vegetation Treatment Project.

The lawsuit said the Forest Service’s finding of “no adverse effects” for lynx was flawed.

The Forest Service said it is possible lynx move through the area, but the habitat isn’t considered occupied.

In a decision Monday, the judge ruled in favor of the forest’s motion for summary judgment, finding the agency had complied with the law on each of the seven points raised in the lawsuit.

The court’s decision notes that “summary judgment is appropriate if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.”

“This is one of those projects that has taken a couple of years and has consumed hundreds of hours of staff time to move through the appeal and litigation process,” Forest Supervisor Bill Avey said in a news release. “The court’s decision validates the hard work that those employees did to get the project to this point and now we look forward to restoring resource conditions and improving public safety by getting to work out on the ground.”

The project area encompasses about 40,700 acres in the Dry Fork of Belt Creek Drainage of the Little Belt Mountains. Within that area, roughly 1,100 acres would be treated using a mix of commercial harvesting, pre-burn slashing and thinning and prescribed fire.

The Dry Fork of Belt Creek is a popular forest recreation area and is considered to be at high risk of wildfire due to the current vegetative conditions including mortality from the mountain pine beetle, lack of defensible space adjacent to private land inholdings, and natural fuel conditions that could result in large scale wildfire, according to the Forest Service.