Mendocino N. F. loses HFRA project lawsuit

The Eastern District of California District Court has reversed a decision by the Mendocino National Forest to implement the Smokey Project, which would include fuel and vegetative treatments intended to further habitat and fire management goals and contribute to the MNF’s timber production goals (Conservation Congress v. U. S. Forest Service). The project was located in a late successional reserve for northern spotted owls. It was prepared pursuant to the Healthy Forest Restoration Act, which requires only one action alternative to the proposed action if the additional alternative is (1) proposed during scoping or the collaborative process; and (2) meets the purpose and need of the project.

 

The court held that the Forest failed to consider an alternative with an 18” DBH diameter cap sought by plaintiffs.   The court interpreted the phrase “collaborative process” to include “something beyond ‘scoping.’” The court then listed 14 comments in the record that suggested a diameter cap for large trees and/or expressed concern over the cutting of larger trees. It concluded, “Based on the Plaintiff’s active participation throughout the iterations of the Project … the Court concludes that Plaintiff’s suggestions were made during the collaborative process.”

 

The court found that the Forest had failed to “explain why none of these triggered the HFRA requirement to prepare a single additional alternative.” While the Forest had considered a 10” DBH diameter cap as a alternative not considered in detail, the court agreed with plaintiffs that this was a “straw alternative” because no comments had suggested such a low limit. The plaintiffs argued that, “more limited thinning from below prescriptions with quantitative diameter limits … were a viable option that would meet all HFRA objectives, while also being consistent with LSR duties,” and this was apparently not contested.

 

The court also found that the EA failed to take the “hard look” required by NEPA because of the lack of this alternative, and for two other reasons. The explanations of the use of a “limited operating period” as a mitigation measure were conflicting and caused confusion about the effects. The project documentation also failed to explain why admitted failure to monitor other projects did not render this project’s impacts “uncertain.” The court upheld the decision against other NEPA claims, which included a claim that the purpose and need for the project conflicted with the forest plan. The court also found that the project complied with ESA and with NFMA consistency requirements, including compliance with the spotted owl recovery plan (which had been incorporated into the forest plan).

Federal lands and transitional economies

Headwaters Economics has released this update to a report discussed at length here last year:

 “Rural counties in the West with more federal lands performed better on average than their peers with less federal lands in four key economic measures.”

“This update of research from last year finds that from the early 1970s to the early 2010s, population, employment, and personal income on average all grew significantly faster—two times faster or more—in western rural counties with the highest share of federal lands compared to counties with the lowest share of federal lands. Per capita income growth was slightly higher in counties with more federal land.”

An article on “transitional communities” adds:

“Rural decline is a large and complex issue that appears to be accelerating. According to the Pew Charitable Trust, during the period between 1994–2010, 38.4 percent of U.S. rural counties lost population; since 2010, over two-thirds of rural counties lost population.  This level of decline has far-reaching national and international implications for food and energy production, tourism, and national culture and identity.”

Putting them together, it looks like public lands can be an important asset for minimizing or avoiding rural decline, if communities can get their act together to embrace this potential and plan for it.

“Particularly in declining communities where long-established residents remember the charm of life in simpler times, residents can have considerable resistance to change. This connection and preservation of the past, while a rural virtue, can impede its adaptation into the future. Resistance to any proposed solution that “hasn’t been done before” simply impedes innovation or positive transition.”

BREXIT, Common Forest Policy in Europe and “empty formulas” – an interview with prof. Max Krott

 

From Forest Monitor blog via SAF Linked In . The author, Rafal Chudy of Oregon State,  asked the question “are there empty formulas in the U.S.” and we have described some here in the 2012 planning rule, but I’m sure they are fairly common.  It’s a natural human tendency to agree to something when you have to, and try to reinterpret it later under more favorable conditions to your point of view.  Here’s a link, and below is an excerpt.

During a Forest Policy course in Sweden, I remember very well your lecture where you were talking about “empty formulas” in forest policy.
Could you explain to Forest Monitor readers what are “empty formulas”?

    – “Empty formulas” are frequently used by political language. They demonstrate an agreement by a formula or a specific wording, but which lack substance due to the use of vague and general terms. Everybody agrees on “Sustainable Forestry” which serves ecological, economic and social needs. But the meaning of such a general goal for a specific stand is vague and open. It includes harvested stands as well as set-asides. During policy implementation “empty formulas” then need to be specified to come up with a solution.     

The attractiveness of empty formulas is that they communicate the impression of political solutions where in practice no agreement was found between conflicting interests. Therefore empty formulas are strongly used by actors in cases with weak decision making procedures, e.g. in international forest policy.  The disadvantage is that empty formulas, which sometimes are even part of laws, leave decision space for substantial decision in implementation dominated by powerful actors.

Litigation Weekly Feb. 10, 2017

Court Decisions

  1. Wildlife & Timber I Region 1

The District Court for the District of Montana granted the Forest Service’s motion for summary judgement on

National Environmental Policy Act (NEPA) and National Forest Management Act (NFMA) claims filed against the Forest Service concerning the North Whitetail Post Fire Project Salvage Sale (Whitetail Project) in the Custer National Forest in Native Ecosystems Council v. Weldon et al. In 2012 the Ash Creek Fire burned across the Whitetail Project area. Following the fire, the Forest Service implemented three salvage sales in the vicinity of the fire; one in 2013, one in 2015, and one in 2016. These sales were categorically excluded from NEPA under an exclusion for the “salvage of dead and/or dying trees not to exceed 250 acres [and] requiring no more than 1/2 mile of temporary road construction.” Plaintiffs assert that the Forest Service improperly segmented these salvage sales and has minimized the impact of the sales on the black-backed woodpecker.

An agency may invoke a categorical exclusion (CE) to NEPA if an action falls within “a category of actions which do not individually or cumulatively have a significant effect on the human environment.” When an agency decides to proceed under a CE, it is required to adequately explain its decision and ensure circumstances do not exist that would have significant environmental effects. Plaintiffs claimed the salvage sales cumulatively did have significant environmental effects and therefore the Forest Service could not use a CE. The court found, however, that the Forest Service provided adequate explanation as to why the sales did not have significant environmental impacts and so found that the Forest Service did not violate NEPA by using a CE.

Plaintiffs argued that the Forest Service violated NFMA by not using the best available science and failing to adequately address the habitat needs of the black-backed woodpecker, a sensitive species on the Custer Gallatin National Forest. The court did not find the plaintiff’s arguments persuasive; the court concluded that the plaintiffs failed to show that the Forest Service did not apply the best available science, and that the Forest Service adequately explained how the salvage sales’ impacts would not affect the woodpecker’s viability. Accordingly, the court found that the Forest Service did not violate NFMA and that the plaintiff’s concerns were not borne out by the facts of the case. (16-00106, D. Mont.).

  1. Wildlife I Region 4

The District Court for the District of Idaho dismissed the Endangered Species Act (ESA) action filed by the

plaintiffs against the Payette National Forest in WildEarth Guardians v. Lannom et al. The original action, filed on September 21, 2016, alleged the Forest Service violated the ESA by failing to consult with the U.S. Fish & Wildlife Service (FWS) on the impacts of the Payette National Forest Travel Management Plain on bull trout. Plaintiffs did not know, however, that the Forest Service had already started to engage in consultations with FWS at the time of filing. Without the ESA claim, the court found it had no jurisdiction to proceed.

Plaintiffs asked the court for a stay in the litigation until the plaintiff’s received the results of the consultation. The court, however, ruled that the court’s interest in not letting “[t]he case languish for a year on a docket that the Court is striving to keep current” outweighed the plaintiff’s interest in avoiding having to pay another filing fee to start a new lawsuit. Accordingly, the court dismissed the action without prejudice. (16-00428, D. Idaho).

Litigation Update

  1. No new litigation updates.

New Cases

  1. No new cases.

Notices of Intent

  1. Timber & Wildlife I Region 1

The Native Ecosystems Council and the Alliance for the Wild Rockies filed a Notice of Intent to Sue (N01) on February 3, 2017 for alleged ESA violations concerning the Smith Shields Forest Health Project on the Custer Gallatin National Forest. The project calls for clearcutting 351 acres and thinning another 1,309 acres within the Crazy Mountains which is identified as a secondary, unoccupied habitat for the Canada lynx in the Northern Rockies Lynx Management Direction (Lynx Amendment). The Forest Service, applying the Lynx Amendment, determined that the project would not adversely impact Canadian lynx habitat.

The NOI claims that the Lynx Amendment violates the ESA because it does not require the Forest Service to carefully consider the current best science concerning lynx habitat. According to the NOI, maintaining linkage areas between core lynx habitats is a key feature for lynx conservation and that the best science shows that clearcutting and forest thinning severely reduces the value of these linkages to Canada lynx. The NOI claims that the Lynx Amendment does not require the Forest Service to consider linkage areas in Forest Service determinations. The NOI concludes that because the Lynx Amendment does not require the Forest Service to protect these linkage areas and as a result the Smith Shield Forest Health Project does not address how the project’s clearcutting and thinning will affect these areas, both the Lynx Amendment and the Smith Shield Forest Health Project are in violation of the ESA.

Natural Resource Management Decisions Involving Other Agencies

  1. No new decisions.

The NFS Litigation Weekly Newsletter is provided to Forest Service employees for internal, informational purposes and is not intended to provide a legal/policy opinion or interpretation of its subject matter. Information presented in the Litigation Weekly is publicly available via official court records. Official court records should be consulted for the most complete and accurate discussion of each case.

Smith Shield Forest Health Project NOI

Native Ecosystems Council v Weldon

WildEarthGuardians v Lannom

Making Every Dollar Count: Leveraging Federal Investments in Land Management to Benefit Local Communities

Figure 2. Value of contracts awarded to local and non-local businesses.

 

Thanks to Chelsea McIver for providing this (investment study) about how the “benefit to local communities” consideration in the 2012 Appropriations Committee is working in practice.

Below are the conclusions..

As these two case studies demonstrate, well over half of the value of federal investments in forest restoration and maintenance activities are being lost due to leakage out of local forest communities. Along with those dollars is the lost potential for that money to circulate and “multiply” in the local economy. So what can rural forest communities do to better leverage federal investments in forest management and restoration on public lands?

New programs and authorities are in place providing an opportunity for land management agencies and communities to work together to increase the utilization of local businesses. The Collaborative Forest Landscape Restoration Program (CFLRP), established in 2009 has made job creation in local communities an explicit objective. Through 10 years of dedicated investments in restoration combined with active monitoring, the program hopes to increase the economic benefits of restoration activities accruing to local communities. Nonetheless, research by McIver (2013; 2016) and others (Moseley and Toth, 2004; Charnley et al., 2008) has shown that legislative intent alone is not enough to change the procurement contracting trends on the ground. As stated previously, government agencies need specific authorities that allow greater consideration of local contractors when awarding procurement contracts.

In 2012, Congress implemented such an authority. The fiscal year 2012 Consolidated Appropriations Act included language providing the Secretaries of Agriculture and Interior authority to consider the benefit to local communities in the awarding of contracts for forest hazardous fuels reduction and other forest and watershed restoration activities. The authority has been extended through FY17. Finally, as Abrams et al. (2015) and Pensky (1993) point out, the engagement of non-federal entities, such as community-based organizations or other non-profits, are critical for implementing import substitution programs due to their in-depth knowledge of a place, experience securing financial resources, and their ability to leverage networks to support their efforts. Careful analysis of federal contracting trends combined with local knowledge can create the foundation for a public-private effort to leveraging federal investments in forest maintenance and restoration to create wealth and build capacity in rural forest communities.

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.

Lyle Laverty on “If I Were Chief of the Forest Service”

Thanks to the Rocky Mountaineers, our Region 2 retirement group, for this link to an Evergreen interview with Lyle Laverty.  I have been out of the loop on potential Secretaries, Undersecretaries and Chiefs and perhaps others can share what they’ve heard…

Interesting that Lyle has worked in both DOI and USDA.  I notice that Evergreen said that he and Michael Rains were candidates. I have worked with both of these folks, and they are both very good.  I wonder who else is on the list?

Any folks can contribute a post on “if I were Chief” to this blog, we are not limited to folks identified by the new administration.  Just email me at terraveritas@gmail.com. Y ou all can pick any of Lyle’s statements to discuss..because we have folks outside the agency here, we can kick it off with:

 

“There is great value in tenure. Land and resources are complex. As an agency, we need to encourage folks to become established members of communities. We need them to understand the complexity of the resources they are stewarding. Tenure translates into learning and accountability. With constant changes, the individual never sees the full outcome of the decisions they make or the work they perform, they never understand the community, or develop the relationships necessary to achieve outcomes. Perhaps a bonus system for tenure could change the active movement. The current alignment of the agency’s human capital does not encourage learning or the formation of the strong community ties that were for decades an integral part of the Forest Service’s great success.”

 

USFS Book: Call for Contributions

NCFP folks,

This is an early call for contributions of essays for a book to be published by the Society of American Foresters, for which I will serve as editor. Working title:

193 Million Acres:

Toward a more healthy and resilient U.S. Forest Service

The book will present a collection of essays describing constructive proposals for increasing the effectiveness and efficiency of the agency. The essays will examine the state of the agency from a variety of viewpoints and propose actions that would address challenges the agency faces. Overall, the book would look at the internal policies and management strategies of the agency itself, including its National Forest planning regulations, but also at the role of Congress and the Executive branch, existing federal laws, legal challenges to resource management, economic opportunities and challenges within and outside of the agency, political support for the agency, the need to adapt forest management as the climate changes, and so on. The purpose of the book is not to criticize the agency, but to offer concrete proposals for how, ultimately, the agency’s operations might be made more efficient and effective and its land-management activities maintained, expanded, and improved. In short, the objective of the book is to examine paths toward a more healthy and resilient US Forest Service.

I’m still working with SAF to iron out some of the details of the book production process. This announcement is intended to encourage potential authors to think about submitting an essay. The preliminary call for contributions is available at:

https://drive.google.com/open?id=0By3YLyexT5xIZWh6SnNTcnU0czQ

Steve Wilent
Editor, The Forestry Source
The Society of American Foresters
SWilent@gmail.com

 

Litigation Weekly Feb. 6, 2017

  1. No new court decisions.

Litigation Update

  1. No new litigation updates.

New Cases

  1. Minerals I Region 9

Plaintiffs filed suit in the District Court of the District of Minnesota alleging the Forest Service’s final Record of Decision (ROD) approving a land exchange known as the PolyMet NorthMet Land Exchange (PMLE) in the Superior National Forest violates the Federal Land Policy and Management Act (FLPMA) in Waterlegacy v. USDA et al. The PMLE is a proposal to exchange 6,650 acres of federal land for 6,690 acres of private land. The purpose of the exchange, according to the complaint, is to enable a foreign corporation, PolyMet Mining, Inc., to develop an open-pit copper-nickel mine.

FLPMA, the complaint states, requires “[t]hat equal value determinations for land exchanges be based on the highest and best use of the property, estimating the value of lands and companies as if in property ownership and available for sale in the open market.” While the Forest Service valued the federal lands for the PMLE at $550 per acre, Plaintiffs claim this value is based solely on the value of timber and fails to consider the market value of the lands for mining purposes. Recent sales of surface lands by private owners to mining company purchasers in Northeastern Minnesota, as per the complaint, average $1,645 per acre. Because the purpose of the sale is to allow the development of an open-pit copper-nickel mine, but the price in the NOI only reflects the valuation of the timber, the complaint alleges the Forest Service failed to comply with FLPMA. Specifically, the complaint alleges the Forest Service ROD:

  1. Failed to consider the purpose and intent of the PMLE is to enable the use of federal lands for an open-pit mine;
  2. Failed to consider that the highest and best use of the property for valuation purposes is for mining;
  3. Devalued the lands by applying a timber income approach; and
  4. Failed to consider that there is a premium value of minerals underlying federal lands as opposed to private lands.

Plaintiffs request the Forest Service vacate the ROD approving the PMLE and seek to enjoin the Forest Service from approving the PMLE. (17-00276, D. Minn.).

Notices of Intent

  1. Wildlife I Region 5

The Environmental Protection Information Center (EPIC) submitted a Notice of Intent to Sue received on January 30, 2017, alleging that the Forest Service violated the Endangered Species Act (ESA) by approving livestock grazing along rivers that provide habitat for coho salmon in the Klamath National Forest without first consulting with the National Marine Fisheries Service (NMFS).

In 2014, NMFS issued a Recovery Plan for coho salmon that states that the Upper Klamath River coho population is of significance to the species’ survival. Horse Creek, located in the Klamath National Forest, is a tributary of the Klamath River and provides habitat to coho that are part of the Upper Klamath River coho population. The NOI states the Forest Service has authorized and continues to authorize livestock grazing on allotments along and in Horse Creek without first consulting with NMFS as to site-specific and cumulative effects of livestock grazing along and in Horse Creek and its tributaries on coho salmon in violation of the ESA.

Natural Resource Management Decisions Involving Other Agencies

  1. No new decisions.

EPIC NOI received 1.30.2017

(I tried to upload the water legacy vs FS pdf file and WordPress said

Sorry, this file type is not permitted for security reasons.”) I can email to anyone interested.

The beginning of state management of national forests

A group of Western senators, including Sens. Jim Risch and Mike Crapo, both R-Idaho, have introduced a bill to allow states to implement their own conservation plans to protect sage grouse and their habitats, in lieu of federal management.

Congress would be allowing states to override the decisions by the Forest Service and BLM to amend their plans to protect sage grouse, which would amount to letting states take over planning for national forests to the extent that it can be tied to sage grouse in any way.