Water

Forest Service “takes” ranchers’ water rights

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The Court of Federal Claims (which reviews monetary claims against the U. S. government) decided a case in November that got a lot of attention in legal circles, but apparently not from the Forest Service.  It held, in Sacramento Grazing Association v. U.S., that the Forest Service violated the Fifth Amendment to the U. S. Constitution by “taking” (without compensation) water rights owned by ranchers using the Sacramento Allotment on the Lincoln National Forest in New Mexico. They did this by constructing exclosures to keep cattle from trampling two federally listed plant species in wet areas, and amending the allotment management plan to prohibit cattle from entering the exclosures.

After determining that historic grazing had established water rights for the ranchers under state law, the court held that the Forest Service physically took the water rights because it denied the ranchers all access to their property interest. The court seemed to base its decision on prior cases that involved entirely fencing off a lake or totally denying access to minerals. The court did not directly address arguments raised by the Forest Service that water rights do not entitle a user to a particular source of the water, and that the permitted number of cows had been able to find sufficient water without using the sources having exclosures.

The court ordered further discussion between the parties of locating alternative water sources, which had been unsuccessfully attempted earlier. If that is not possible, the Forest Service would be faced with continuing to pay the ranchers, or removing the exclosures, potentially leading to violations of the ESA. Or maybe they could not renew the permit or terminate the allotment. In earlier stages of the case, the court had held that the grazing permits are not a property right, and in this case, the number of cattle permitted to be grazed had also been reduced. However, the court’s reasoning in this recent decision would appear to also produce a “taking” if the historic number of cows were not allowed to graze the allotment because fewer cows could not use the historic volume of water ranchers are entitled to.

The case seems to be viewed as an aberration among “takings” scholars, this blog post noting that this outcome should be barred by a precedent set by the Federal Circuit in another recent case.  It is therefore a good candidate for appeal, but who knows what the current Administration might think about that, and it should have happened by now.  Here is a take from the ranchers’ perspective (which takes off from the court’s invoking of the Malheur National Wildlife Refuge occupation as a similar situation with different results).

Litigation Weekly – February 2, 2018

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Litigation Weekly Feb 2

(New case.)  Plaintiffs claim 23 surface water diversions on the Sawtooth National Forest adversely affect listed fish species, and that the Forest Service failed to consult on them with the U. S. Fish and Wildlife Service as required by the Endangered Species Act.  (D. Idaho)  (Also discussed here.)

This Supreme Court decision favored industry plaintiffs objecting to the Obama Administration’s 2015 regulation defining the “waters of the United States” (WOTUS) subject to the Clean Water Act by holding that the case must be heard initially in a district court rather than an appeals court.  This maneuvering is likely related to the fact that the Trump Administration is in the process of changing the 2015 regulation. (U.S.) (More information may be found here.)

(New case.)  The Tribe’s claim is that federal agencies have a mandatory duty to exercise jurisdiction over permit applications for discharge from a mine into the Menominee River and adjacent wetlands, and cannot delegate that responsibility to the State of Michigan.  (E.D. Wis.)

The Fish and Wildlife Service improperly denied petitions to list bison under the Endangered Species Act in its initial (90-day) finding because competing scientific theories indicated that the species “may” be warranted for listing.  (D. D.C.)

Blogger’s note:

The Forest Service summary doesn’t really explain the importance of the disagreement about genetics.  One of the claims in the petitions is that while the existing plan to maintain the population at 3000 individuals could be an adequate regulatory mechanism to protect one genetic population (inadequate regulatory mechanisms being one of the factors for listing species), it would not be adequate to maintain two genetically distinct herds (arguably requiring 3000 in each herd, and I think one of the studies must be suggesting that the loss of one genetic population would threaten the species as a whole).

Also, it is important to recognize that the “may” be warranted standard prevents the agency from making its own determination of the best science at the 90-day stage.  That is what federal agencies normally get to do.  The second stage of the ESA listing process is the 12-month finding, and that is where the FWS must decide if listing is actually warranted, based on its weighing of the science.

These bison are also an issue in the Custer-Gallatin forest plan revision process (noted here).

 

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.)

Loggers lose attempt to remove coho salmon from California’s endangered list

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On remand from the California Supreme Court, the Central Coast Forest Association and Big Creek Lumber Company lost again in the state appeals court.  They have been arguing that coho salmon did not occur naturally in rivers south of San Francisco, and that hatchery coho were harming native steelhead.  The state Fish and Game Commission had found otherwise.

From the judge:  “Petitioners have not offered sufficient evidence that the current inhabitants of the streams south of San Francisco are directly the result of out-of-state hatchery stock,” he wrote. “Moreover, the Commission relied on recent genetic data, the results of which rule out the claim that hatchery fish replaced the native stock south of San Francisco.”

From an environmental intervenor attorney:   “The petitioners/plaintiffs are timber companies, not advocates for steelhead,” he said, noting that the appellate court’s ruling blames timber harvesting in part for the decline in coho populations.  “It seems pretty transparent that their interests lie in reducing restrictions on timber operations, not protecting salmon or steelhead,” Evans added. “Protections for waterways that contain coho salmon would also benefit steelhead trout in those same rivers. So, in essence, greater protections against sediment, erosion, roads, and increases in water temperature due to timber harvest would benefit both salmon and steelhead, which have similar ecological needs.”

From the plaintiffs’ attorney:  “It’s sad to see the deepening corruption of science in California. It’s just another layer of regulation and stupidity,” he said. “This decision is sinking California into a pit of idiocy from which it will never return.”

It sounds to me like it’s just typical judicial deference to a professional agency’s interpretation of science.  And for lumber companies to say they are only concerned about the fish – that sounds a little “stupid” (but whatever it takes to try to win the case, right?).

 

What is Beyond the “Fog of War”?

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There are scary and uncertain times ahead for our forests. There is just too much “Fog of War” going on for the public to sort out and fact-check for themselves. Even the ‘fact-checkers’ should be suspect, until proven reliable and bias-free. The rise of ‘fake news’ has blurred multiple lines, and many people, even in mass media, fall for the hoaxes, satire or misinformation. (Example: An article appeared on the Grist website, showing concern about a recall of “Dog Condoms”, presenting the link to www.dogcondoms.com )

Thinning for Water in California: Various Disciplines Weigh In

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Sediment basin for KREW (KIng’s River Experimental Watershed) from SNAMP website.
M of T noted in a comment that a force against MT (mechanical treatments) which may be necessary before PB (prescribed burns) is the problem of dealing with non-commercial material that needs to be removed. Her comment reminded me of this article in The Economist.

Thinning efforts are off to a great start but must accelerate, says Timothy Quinn, head of the Association of California Water Agencies. Five times as much forest should be thinned every year, estimates Roger Bales, a hydrologist at the University of California, Merced. To find out how much extra water a thinned watershed produces, the university has placed sensors in thinned and control plots in the Stanislaus-Tuolumne Experimental Forest north of Yosemite National Park. Depending on landscape and precipitation, thinned areas shed 10-40% more water into streams, Mr Bales estimates.

More accurate numbers will be available next year. The hope, says Eric Knapp, a Forest Service ecologist in Redding, is that a new thinning technique will prove to produce even more water when flow volumes from next spring’s snowmelt are known. Some plots are not thinned evenly, but rather by clear-cutting gaps with a diameter one or two times the height of surrounding trees. The idea is to clear an area big enough for a good snowpack to form, but small enough for shade to reduce evaporation and extend the melting season.

California’s governor recently signed a bill that facilitates thinning watersheds. But some environmentalists resist “cutting any tree for any reason”, as the Forest Service’s Mr Murphy puts it. And some think thinning doesn’t produce meaningfully more run-off. That’s the opinion of Chris Frissell of Frissell & Raven Hydrobiological and Landscape Sciences, a consultancy in Polson, Montana. Thinning has become popular in the state, but, he says, it disturbs soil, generating silt that harms aquatic life.

Clearing trees with fire is cheap if all goes to plan but only makes sense in certain areas. Thinning with big chainsaws on wheels can cost up to $650,000 per square mile. This could be recouped with timber revenue if big trees are felled. But the chainsaws are usually only let loose on smaller trees, so taxpayers must cough up.

One solution would be to get water utilities or hydropower producers to fund the thinning. AMP Insights, a consultancy which has estimated the value of water flowing out of the Sierra Nevada, reckons the extra flow would defray the cost of removing trees by 20% and, in wet years, by 60% or more.

Here we have one scientist (Bales) with monitors in plots saying that thinned areas get more water into streams, but (Frissell) possibly at the expense of aquatic life. We’ll explore that in greater depth in the future.

As Brian Hawthorne said earlier, thinning for fuel treatment is not the only reason to thin. Brian also mentioned restoration. Bales and others are thinking about dealing with climate change and water resources, another purpose, involving more disciplines. The scientists in the article come from a variety of disciplines.
Here’s Eric Knapp, forest ecologist.
Tim Murphy is a hydrologist/soil scientist (according to LinkedIn)
Chris Frissell seems to also be a scientist at U of Montana in addition to the consultancy the article mentions. Here’s his information. He is an aquatic ecologist.
Roger Bales works on water and climate engineering and is a professor at U of Calif Merced. Here’s his info.

Watershed, Wildfires and BMP’s – Montana

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Continuing improvements in harvesting equipment have facilitated industry’s ability to meet or exceed the guidelines of Montana’s Best Management Practices. (from Exec Summary of 2016 BMP Report Montana

2nd Law said a while back here “Logging on the other hand, is much more likely (than wildfires) to harm watersheds, especially commercial logging that requires dragging logs and maintaining a road system.” At first when I read his comment, I thought “I wonder why he/she thinks so differently than Denver Water, Santa Fe and Flagstaff about the relative risks?”

I think sometimes the more legally trained/inclined and the more ground resource trained/ inclined have a difference in how we think about things and how we talk about things. I wrote about this before in 2010 here (concrete v. abstract thinkers).. do we go into different lines of work because we think this way, or do we think this way because of the line of work we’re in?) but the above comment reminded me of this difference. (For older FS people, when I worked in RPA, my colleague Susan Mockenhaupt called interactions between Jim Caplan and Mark Reimers, “Thoreau meets Perot”).

For those who think like me, 2nd’s statement is the very beginning of a discussion.
What do you mean exactly by “logging?” Is that what we would call “tree-cutting and piling for burning” or “removal of logs via road systems” “removal of logs by helicopter”? Because we could see all those having different potential impacts on watersheds. But 2nd did specify “dragging logs” and “maintaining a road system” (why would you need to do that compared to temp roads?).

Then my next thought would be:
“wouldn’t that depend on … how much risk to the watershed, which would depend on soil characteristics, steepness of slopes, amount and nature of fuels, and so on…frequency of fires and that depends on…”

To the extreme, that would be why, Asheville’s watershed risks would be different from Santa Fe’s. And of course, wouldn’t that depend on BMP’s how they’re designed, whether they’re used, and how well they work?

So I looked around and found this 2016 report summary for monitoring Montana’s BMPs, since Montana seems to be the site of much watershed controversy compared to the other states we’ve looked at.

From the full report for 2016 here, pp 37-38


Evaluate the general effectiveness of BMPs in protecting soil and water resources.

Conclusions drawn from the field review results since the 2000 review cycle inclusive are very straightforward and consistent; when BMPs are applied correctly, they are very effective in protecting soil and water resources. This combined with the efforts of many loggers, landowners, agencies, and
mills to go above and beyond the standards to minimize sediments has kept overall results high and has 38 brought real improvements on the ground, where it counts. When teams review a site they don’t just look at the actual BMP. They look at whatever the BMP was designed to protect as well. Is there silt entering the stream? Are roads rutted beyond typical usage patterns? And so forth. The idea is to look at all aspects of any particular BMP and see if it is working and if not why not. Teams note if it is a fault of the operation, outside factors, or of the BMP itself. The BMP Working Group reviews the combined results and determines if any changes to the BMPs themselves need to be made.

It seems to me that the choice of a) fuels treatment including mechanical treatments vs. b) accepting wildfire impacts is very much a function of the soil, water, vegetation, and weather conditions, plus the design of the treatment, including effectiveness of mitigation measures such as BMP’s in a specific watershed. Now, you can argue that Montana’s checking process is not an accurate representation of what happens on the ground, but that is a very different convo at a very different scale, (with different people being expert).

A Roundup of Western Watershed/Fuels Partnerships

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This is a very long, and well worth reading, article by Sherry Devlin in Treesource about the Flagstaff effort, Forests to Faucets, and Feather River efforts in California. Below are couple of excerpts- feel free to post other excerpts of interest in the comments.

Jonathan Kusel on why California might be different from other efforts:

“One of the great frustrations of folks in the upper watersheds and those working on forests and forest health issues in California is that folks in urban areas do not make the connection between forest and watershed health, and water quality and quantity,” said Jonathan Kusel, executive director of the Sierra Institute for Community and Environment. “That’s particularly true in California because some of the water is moved so far.

“You ask the average person in Southern California where their water comes from and they’ll honestly and sincerely say, ‘The tap.’ In general, we have a pretty limited understanding of where water comes from and how far it gets moved before it comes out of the tap.”
The greater problem stems from the lack of connection the public makes between a healthy forest and a healthy watershed, Kusel said. “We have tried for well over two decades to help Californians make that connection, with limited success.”

and..

The Feather River provides one-quarter of California’s drinking water. The city of Los Angeles is one of the beneficiaries of the watershed.

California’s complex system of water-delivery reservoirs, aqueducts, pipes and tunnels commands much of the public’s attention, Kusel said. “It’s such an amazing system, such a complexity of conveyance facilities, that most people associate their drinking water with that infrastructure. They don’t make the same connection with the green infrastructure at the start of the delivery system.”

So while metro areas like Denver and smaller cities like Santa Fe and Flagstaff are able to convince utilities, ratepayers and voters to finance forest restoration projects, Kusel has no such buy-in from Southern California communities.

“Our accounting methods for these environmental benefits of forests are limited,” he said. “The payment for ecosystem services is, for the most part, not there. And that’s what we need. We can come up with the charges that would make a huge difference in the overall health of our forests and our watersheds, but no one wants their pocket picked.”

And on opposition to the Flagstaff project:

Opposition has been minimal, said Jessica Richardson, the Forest Service’s lead on the Flagstaff Watershed Protection Project. “I really think there will always be people who are not 100 percent in support, but even those folks are supportive of the general concept of what we are doing.”

It goes back to the bond’s 74 percent approval, said Elson. “We had the social capital. So some of the groups that might have opposed us chose not to in this case, even though there are visual impacts, steep slopes and spotted owls. There is an excitement about the project in the community.”

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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?

Fremont-Winema wins sucker lawsuit

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In Oregon Wild v. Cummins, the Oregon district court upheld the Fremont-Winema National Forest’s compliance with the requirement of INFISH to “modify grazing practices … that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish.”   The court quoted a prior case for INFISH requirements: “INFISH contemplates that its objectives are `targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.”  While plaintiffs identified streams that did not meet RMOs, the Forest had monitoring data that showed overall improvement in stream conditions. While past grazing practices had contributed to degraded conditions, the court held that now, “there is nothing to indicate that grazing is contributing to any failure to attain INFISH RMOs at a watershed level.”

The court dismissed Endangered Species Act claims regarding the impacts of grazing on two listed sucker species because the Forest was obligated to reinitiate consultation on its grazing permits on a 10-year schedule, which was now ongoing and must be completed prior to further grazing. It also dismissed a challenge to an EA used to approve livestock grazing because plaintiffs failed to exhaust their administrative remedies by appealing the decision (which would have stayed any further grazing until the appeal was resolved).   Finally, there was no significant new information that would require supplementing the EA for grazing allotments.