Zeke Lunder on the Shelly Fire and Carbon Credits

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Zeke Lunder had an interesting series of tweets on the Shelly Fire about one of our favorite topics, carbon credits, dry forests, and dead trees.

I couldn’t help but think “don’t some groups effectively believe the same thing?” Leaving trees alone gives you most carbon benefits, assuming away the whole wildfire/dead tree problem in dry forests. Isn’t the concept the same? Not allowing tree cutting in overstocked dry forests does not actually help with carbon,  it can lead to more intense and destructive wildfire behavior, and impact the use of beneficial fire in neighboring forests.  The concept is “leaving trees alone is always good for carbon” and the mechanisms are federal MOG policy and the carbon credit markets.  It seems to me if the concept is wrong, it doesn’t matter what the mechanism is. Except, yes, more people make money via carbon credits, monitoring and accounting.

For example, from the Sierra Club:

BREAKING: Today, President Biden announced a plan to protect old-growth forests across the country
The Biden admin released a plan to protect old-growth forests. This is essential for achieving permanent protection, but we must do more.

Anyway, back to Zeke’s thread, I excerpted enough to give you a taste, but reading his whole thread is best.

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This looks good on paper. But promising to ‘further enhanc(e) conservation values and climate resilience for all who inhabit and visit this vast landscape’ while adopting a forest management strategy which aims to maximize the amount of carbon (fuel) on the site seems absurd. 5/xImage
Much of the landscape in the 40,000 acres recently placed into conservation easements here has not burned for 70 years or more, and as a result is covered with extremely over-stocked, sick forests. Yet carbon pirates like EFMI hawk them as ‘Undervalued Carbon Assets’. 6/xefmi.com/why-invest/

Conservation groups, carbon bankers, and industrial timberland owners all face an existential challenge: How can you maintain conifer forests in fire-prone landscapes without re-introducing mixed-severity fire at scale? (You can’t). Map shows fire history adjacent to EFM lands. 7/xImage
You can’t sell dry forests as a ‘tool to decarbonize infestment portfolios’ unless you are willing to do the work of making them fire resilient again. Any many of us who work in the woods are not sure this is even possible at this point. #YourCarbonIsGettingSmoked 8/x Image
The presence of overstocked private timberlands on the margins of the backcountry ends out being a huge obstacle to letting beneficial lightning fires burn out there. The impacts of the carbon nerds’ shenanigans extends well beyond the boundaries of their (stolen) lands. 9/x

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Under Fire: The Escalating Crises Of USFS Fire Policy In The West

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Thanks to Dana Tibbitts for submitting this op-ed, printed in the Nevada Globe.

OPINION–Under Fire: The Escalating Crises Of USFS Fire Policy In The West

Apparently, insurance companies are more risk averse than federal fire fighting agencies

By Dana Tibbitts, July 12, 2024 11:17 am

Through the opening salvo of another red hot fire season, another cloud of calamity is rearing its ugly head: insurance companies running for the door, dropping policyholders like hot potatoes, doubling down on already skyrocketing insurance rates, and refusing new customer coverage plans like there’s no tomorrow.

For many of these providers, there is no tomorrow in the West. What kind of insurance company can operate in states staggering under rampant wildfire operations, where firefighting agencies have been given broad license to burn and destroy with impunity millions of acres of forest, rangelands, ranches, homes and properties?

“Consecutive years of wildfire losses and increasing number of acres burned across the state have challenged our view of risk and require us to implement adjustments to allow us to be viable in the market,” Travelers Insurance reported in a recent filing in California. “It is critical to the success of our business that we reduce our exposure to wildfire catastrophic losses.”

Not only are extreme wildfire risks unsustainable for insurance providers, but what about the rest of us trying to cope with catastrophic fire activity year after year, hazardous smoke and air quality conditions, evacuation, economic collapse, and failed insurance safeguards?

We’re about to find out.

State Farm has just delivered a brutal ultimatum: Authorize another massive round of rate increases or we’re out. This second round of on-demand rate hikes this year—30 percent for homeowner policies, 52 percent for renters, and 36 percent for condominium owners—has millions of shell-shocked residents in California and Nevada over a barrel and legislators running for cover.

Screenshot of news report on Caldor Fire (Photo: Flickr)

At a recent standing room only Town Hall in Incline Village, Nevada, a crowd of concerned citizens facing massive increases in HOA fees and coverage implosion were hopeful to hear what assurances Nevada Insurance Commissioner Scott Kipper might offer. His bottom line to concerned residents: Expect nothing before 2027.

Kipper also pointed out that Nevada law allows companies to not renew policies if the risks are too great. So this new “no policy–no mortgage” reality sets up a stalemate for residents suddenly confronted with no coverage or property marketing options. Nor are there concessions for homeowners following the rules for defensible space.

North Lake Tahoe Fire Chief Ryan Sommers was more optimistic, applauding citizens for coming together as a united front. “When we all stand together against insurance companies, public agencies and government officials, we will see results.”

We’re told that this is all because of climate change, as if repeating it often enough makes it true. It is not. Nor is the wildfire crisis rooted in “a hundred years of fire suppression” as pro-burn environmental groups and the fire lobby organizations like to claim. Instead, they pressure the USFS to increase the use of long running beneficial fire for greater forest resilience and a fire-adapted West—over and against the risk of ever more intense and devastating fires.

Apparently, insurance companies are more risk averse than federal fire fighting agencies.

Out of control fires are the new norm, not because of climate change, but because of signed agreements between USFS, state governors, and other public-private partnerships, given broad license to burn as the most efficient way to meet shared objectives.

These Memorandums of Understanding (MOUs) direct the Forest Service and their “partners” to burn or “treat” a million acres of forest landscape every year. The more they burn, the more they earn—claiming critical reimbursements from Congress for acres burned as well as acres “restored.” Same in Nevada where USFS’ Let burn policy allowed a small, slow, early fire to ultimately destroy 68,000 acres with fire crews on standby, 48,000 of which were claimed as “restored” for additional funds. Ask the fire victims of Tamarack how that restoration project is going.

What is more dangerous than fire allowed to burn for weeks and months on end without putting it out, all under the guise of “beneficial” fire? There is no managing a fire that has been allowed or enabled to grow to stage four.

USFS Fire Chief Randy Moore. (Photo: USFS)

USFS Chief Randy Moore’s disastrous fire aggressions and unauthorized activity to grow fires willy-nilly on public lands is a standing feature of his annual letter of intent. Considering the USFS incomprehensible failure to “first, put out the fire” and their infringement on constitutional due process, USFS modus operandi is a clear travesty against the people warranting public scrutiny at the very least, and legal action to reform bad policy at best.

Given present challenges, the National Wildfire Institute (NWI) has taken a strong stance against fighting fire with more fire.  The organization of mostly retired USFS leadership, which does not support managed burns, says such tactics are neither safe nor effective. The most effective way to deal with unplanned fire is this: First, put it out! 

“Our federally controlled lands are at an all-time disarray as a result of 40 years of dismal Forest Service leadership,” one NWI member explains. “As a result, we have a backlog of hazardous fuel conditions on public lands that have been neglected for three or four decades, and land management agencies don’t want to admit it or acknowledge that their tactics help create this debacle. If we don’t make major changes soon, the “let burn” and “managed fire” policy will convert our forests to highly flammable brush and weedy invasive species in a very short time. We must move quickly to bring sanity to this explosive scenario—”First, put out the FIRE!”

“The out-of-control USFS policy of growing fires to ‘restore fire to fire depleted ecosystems’ often results in firestorms and burned acres far beyond anything previously recorded in California and across the eleven Western States,” says Wildfire Pro’s chief forester Frank Carroll. “The tragic effects of these ongoing, intentional burn operations – month after month, year after year – result in far-reaching damage to our air quality, water and watershed environments, life-sustaining habitats, and wildlife. Government agencies setting intentional fires in our pristine forest lands is among the greatest tragedies and on-going threats of our time.”

Make no mistake – the West is under fire and insurance companies are in a state of collapse. However, the cornerstone of this twin crisis is the same: the USFS disastrous fire policy and practice in recent decades is terrorizing millions of Americans who are left to wonder—What ever happened to our most trusted institutions? And, why can’t they just put out the fire?

Dana Tibbitts began her career as a writer and media relations professional at UCLA and continued to work in higher education, media and the arts for much of the next 30 years. She has authored several books, including the highly acclaimed biography, Harnessing the Sky: Frederick “Trap” Trapnell, the U.S. Navy’s Aviation Pioneer, published by the Naval Institute Press. Dana and her husband have lived in Lake Tahoe for 13 years.

The Breakthrough Institute NEPA Litigation Report

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The Breakthrough Institute posted an interesting report today- so shout-out to them for digging into the litigation question.  They are mostly interested in litigation and possibly permitting reform affects infrastructure projects, but, as usual, Forest Service vegetation projects continue to play a starring role in the NEPA litigation drama.  I’ll excerpt the main points they make about the FS.  Others are welcome to add their thoughts.

Breakthrough Institute analysts, in collaboration with legal experts at Holland & Knight, compiled and analyzed 387 NEPA cases brought to the U.S. appellate court system over the 2013-2022 period and categorized them by project type, environmental review, length of judicial review, federal agency, and plaintiff. Our results indicate that NEPA litigation overwhelmingly functions as a form of delay, as most cases take years before courts ultimately rule in favor of the defending federal agency.
As Congress deliberates reforms to NEPA, it is essential that policymakers recognize the degree to which the legal status quo prioritizes procedure over outcomes. To enable more effective environmental review, reforms should minimize the potential for extended, unproductive legal battles while still promoting the fair assessment of environmental impacts.

Here are their Key Findings:

Between 2013 and 2022, circuit courts heard approximately 39 NEPA appeals cases per year, a 56% increase over the rate from 2001 to 2015.2
• Agencies won about 80% of the 2013-2022 appeals cases, 11% more per year than from 2001 to 2004, 8% more than from 2001 to 2008, and 4% less than from 2009 to 2015.3 The rate at which agencies’ reviews are upheld is high, meaning these environmental reviews are seldom changed as a result of litigation.
• On average, 4.2 years elapsed between publication of an environmental impact statement or environmental assessment and conclusion of the corresponding legal challenge at the appellate level. Of these appealed cases, 84% were closed less than six years after the contested permit was published, and 39% were closed in less than three.
• Among the challenges, 42% contested environmental impact statements, and 36% contested environmental assessments. Agencies won about 80% of challenges to both.
• NGOs instigated 72% of the total challenges. Of those, just 10 organizations initiated 35% and had a success rate of just 26%, merely 6% higher than the average for all types of plaintiffs.
• Only 2.8% of NEPA litigations pertained to agency assessment of environmental justice issues.
• Public lands management projects were the most common subject of litigation (37%), the greatest share of which (47%) challenged forest management projects. Just 10 groups filed 67% of the challenges to forest management projects and collectively won only 23% of those cases, adding 3.7 years on average to the process of implementing the 77% of projects on cases they lost.
• Energy projects were the second most common subject of litigation (29%). Litigation delayed fossil fuel and clean energy project implementation by 3.9 years on average, despite the fact
that agencies won 71% of those challenges. NGOs filed 74% of energy cases, with just 10 organizations responsible for 48% of challenges.

We’re #1! We’re #!!

Forest management projects were the most common subject of litigation.
Despite public outcry over NEPA’s impact on clean energy deployment, energy projects don’t constitute the largest share of legal challenges in this dataset. Instead, the majority (37%) of total NEPA challenges contested public lands management projects. The U.S. Forest Service and Bureau of Land Management together manage the majority of
federally owned land in the United States, about 437 million acres.25 A NEPA review is required whenever these agencies perform management activities, like removing dead trees or building roads. This highlights a key distinction between the requirements NEPA imposes on public lands management agencies and those that focus on building infrastructure. Where NEPA acts as a mechanism to regulate private industry activity when permitting mines or wind farms, it also governs how land management agencies execute their core, legislatively mandated responsibilities. Thus, NEPA litigation poses a unique challenge for these agencies, allowing the public to contest the minutiae of their every decision.

In this dataset, forest management projects were most often the subject of appeals (Table 5), constituting 47% of land management cases and 17% of cases overall. Just 10 organizations filed 67% of these cases (Table 6), underscoring that NEPA litigation often originates from activism efforts advanced by a small number of NGOs. Collectively, this group of organizations won only 23% of their cases, while adding about 3.7 years on average to the process of implementing projects on cases they lost.

I don’t think that any TSW-ites will be surprised by this.  As I recall, when the GAO report came out about appeals and litigation, Region 1 was the outlier in terms of having the most litigation.  I posted about that here in 2010.  My hypothesis was that more lawsuits was due to the presence of more regional litigatorily-inclined NGOs. This seems to continue to be the case. After all, it’s not the Alliance for the Wild Sierras nor Shenandoahs.

 

Here is Breakthrough’s  broader look at litigants for all projects.

And finally, for energy, this is what it looks like:

So take a look if you’re interested and put your thoughts in the comments here.

Dan Farber on Loper Bright and Grandmothering

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I think there was a lot of concern about the “foundational regulatory structure” being overturned by the Loper decision, perhaps by reporters who didn’t have time to digest it, or people who simply want to generate fear and clicks.  The media push might not even be so much about the decision itself, as fitting the decision into the current political “bad Supreme Court” narrative.

So I’ve been curious to back up and see what legal minds, after some reflection and careful thought, have to say about the “grandmothering” of decisions I mentioned yesterday.  Fortunately, Dan Farber of the UC Berkeley Law School addressed this directly in a Legal Planet blog post. 

Remember, new regulations are relatively few in Forest Service world.  The OG effort is a national plan amendment, and the NWFP is a regional plan amendment.  Perhaps there are more regulations in BLM world, most notably the recent Public Lands Rule.

Farber also has a post specifically on “Is the sky falling?”

But unlike many commentators, I don’t think the sky is falling. I was teaching environmental law before Chevron was decided, and I can testify that agencies like EPA were able to succeed in that setting.

It is interesting to consider what having old people around who remember the past adds to the discussion.

Anyway, back to the details of grandmothering.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy time, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.

The Court’s discussion began by saying that “we do not call into question prior cases that relied on the Chevron framework.”  Thus, “the holdings of those cases that specific agency actions are lawful—in­cluding the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis [Latin for standing by past decisions] despite our change interpretive methodology.” “This means that “mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided.’”  And “That is not enough to justify overruling a statutory precedent.”

It seems clear that the specific regulation upheld by an earlier decision is protected by that previous decision.  Thus, the idea that overruling Chevron makes it open season on existing regulations is an exaggeration, because many of those regulations are protected by binding precedent.  The next question is the scope of the protection given an agency. The Court begins by referring to specific regulations but then talks more broadly about statutory stare decisis (precedent).

It’s significant that the Court referred to statutory stare decisis, because the general rule is that cases interpreting statutes are especially difficult to overrule.  Unlike a constitutional decision, a case interpreting a statute can be reversed by Congress passing a new law.  Therefore, error correction by the courts is less needed for statutory precedents. That means that overruling cases from the Chevron era will be very difficult.

What happens if a regulation that was upheld under Chevron is later amended? If the features of the regulation that were challenged in the earlier case remain unchanged, that should mean that the validity of those features is still binding law.  Presumably, the same should be true even if the agency repeals the earlier regulation and replaces it with a new regulation that retains those features. The innovations in the new regulation might be subject to attack, but stare decisis (respect for precedent) should protect the features inherited from the earlier regulation.

For example, EPA issued an interstate pollution rule that was based on an earlier Supreme Court decision called EME Homer.   Less than a week before Loper, the Court stayed that decision for other reasons, but nowhere in that opinion was there a hint that EME Homer was in any way in doubt.

There has been talk about a surge of litigation challenging regulations that were upheld under Chevron.  The Court seems to have been trying to shut the door to such challenges. Doing otherwise would have introduced chaos into many areas of regulation, with a devastating effect on everyone who had relied on those decisions – investors, agency officials, states, and Congress itself. No doubt there will be a few lawless judges – probably in the Fifth Circuit – who will ignore the Court’s directives. They will deserve summary reversal by the Supreme Court.

I don’t know what things the Fifth Circuit has done to irritate Farber. There are several National Forests, but not that much FS litigation that I recall.

Oregonian Article: Is it Really About Possible Challenges to the 2012 Planning Rule?

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Back to Steve’s post on the Loper/Chevron decision.  It sounds in the first few paragraphs as if the reporter is talking about the NWFP revision, but a careful read of what people said:

But Oregon environmental advocates say those rules, among many others issued by federal regulatory agencies, could now come under threat. The Supreme Court late last month overturned what’s known as the Chevron decision, a longstanding precedent that lower federal courts should defer to agencies — staffed by experts — on “reasonable” rule changes to enforce legislation.

The ruling effectively means federal regulators will have a harder time defending those rule changes in court. It could also make existing rules easier to challenge.

If I read carefully, I think the environmental advocates (wish reporters would give names..) are questioning whether someone could litigate the 2012 Rule itself.  But it’s been 12 years and no one’s litigated it so far.  Still, if the NW Forest Plan Amendments’ new decisions are unpopular in some quarters, maybe these two decisions (Loper and Corner Post) might work together such that someone could litigate the 2012 Rule itself.  I’m thinking that it could be argued that folks in the NW weren’t affected (Corner Post) by the 2012 Rule until the time NWFP was amended under it.

Going back to the article, speaking of Corner Post, Professor Rohlf said:

 previously, there was a six-year statute of limitations for challenging federal regulation, beginning when the regulation was implemented. But now, the six-year clock starts when the regulation begins to affect the entity mounting the challenge.

On the other hand,  the Loper decision is expressly proactive:

The Court did “not call into question prior cases that relied on the Chevron framework.  The holdings of those cases that specific agency actions are lawful—in­cluding the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology . . . Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chev­ron is, at best, ‘just an argument that the precedent was wrongly decided.’”[12]

But as far as I know, the 2012 Rule has not been litigated at all, so perhaps the idea that the change is not retroactive is not applicable? Also, I think many media reports have been unclear about the prospective nature of the Loper decision.

I’m hoping our lawyer friends will shed more light on this.

I asked Andy Geissler of AFRC, as they are known to keep up with these issues.  Here’s his response:

The Oregonian article referenced in Steve’s post is, I believe, referring to the ongoing effort by the Forest Service to amend the northwest forest plan.  The Oregonian mischaracterizes this process by stating that the Forest Service is “updating those rules.”  This is a bit inaccurate.  The Forest Service isn’t updating any “rules”, they are Amending their Plan.  I imagine that, among those amendments, will be some new and/or modified standards and guidelines; but that is not the same as formal Rulemaking.

This may sound nitpicky, as standards & guidelines could be described and interpreted as “rules” in plain English, but in the context of the recent Supreme Court decision, there is an important distinction between formal Rulemaking and, in this case, completing a Plan Amendment.  For example, the Bureau of Land Management recently published its Public Lands Rule on conservation and land health.  This Rule did not formally Amend any specific Land Management Plan.  However, it does include direction to pursue such Amendments pursuant to the new Rule.  The Chevron case applies to how agencies interpret statutes when they conduct Rulemaking.  So, any challenges to the BLM’s Public Lands Rule could be affected by the Chevron decision as the BLM is interpreting statutes that the Rule complies with.

The Oregonian article also describes that “Oregon environmental advocates say those rules….could now come under threat” in the wake of the Chevron decision by the Supreme Court.  This statement is also a bit misleading–mainly because the Oregonian mischaracterized the Plan Amendment as a rule.  The current Amendment, if and when finalized, can certainly be challenged in court.  How such a challenge is brought by litigants or how judges may consider the challenge should not be affected by the recent Supreme Court decision since this is an Amendment, not a formal Rule.

If my thinking is correct, we may have a chance to trot out Andy’s KISS Rule for another round of rule-making! Or would a formal lessons-learned, similar to the Prescribed Fire stand-down and review be in the cards this time? I would hope so.  Judges may go back and forth, but they are not responsible for asking if the process is useful or well-fitted to the task at hand, or worth the investment of financial and human resources by the public, the agency and interest groups.

Federal Lands Litigation – update through July 9, 2024

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FOREST SERVICE

Settlement in Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On June 21, a letter from the Nantahala-Pisgah National Forest documented a decision “not to implement” the shelterwood treatment, temporary road construction or the designated post-harvest prescribed burn within 15-acres of the Southside Project that is located in a Special Interest Area next to the Whitewater River.  Plaintiff organizations then dismissed the lawsuit.  (The article includes a link to the letter.)

A major problem with management proposed for this site was consistency with the recently revised forest plan, which is also under litigation.  This article discusses the interplay between collaboration and litigation related to the forest plan.  Some quotes:

Martin Nie (policy analyst):  “Collaboration doesn’t make the Forest Service immune from the panoply of environmental statutes they have to follow.  If there are projects that potentially undermine those protections you’re going to get litigation.”

Plaintiff SELC attorney Sam Evans:  “If the Forest Service had been willing to listen to the collaborative solutions this would be unnecessary.  I know that some people see us as being unreasonable at this point, but it’s never unreasonable to ask a federal agency to follow the law.”

From a representative of the Fish and Wildlife Conservation Council:  “We’ll fight over the last acre if we have to defend restoration and wildlife management…”

My favorite quote, from a member of American Whitewater: “Forest planning has always been about the cool stuff we can do to make things better on the ground for people and the forest.”

New lawsuit:  Save Our Forest Association v. U. S. Forest Service (C.D. California)

On June 25, Save our Forest Association filed a lawsuit against the Forest Service over its decision to allow BlueTriton Brands (producer of Arrowhead bottled water) to pipe water out of the San Bernardino National Forest Lands under a special use permit, and the dewatering of Strawberry Creek and its tributary streams.  A state order to stop the diversions due to lack of water rights is suspended by other court proceedings.  (The article has a link to the complaint, and describes the long history of this case.)

Court decision in Alliance for the Wild Rockies v. Lannom (D. Montana)

On June 27, the district court adopted a magistrate judge’s findings that the Helena-Lewis and Clark National Forest violated NEPA and NFMA when it approved the Horsefly Project authorizing timber harvesting, thinning, and prescribed burning as well as aspen and meadow restoration.  The Forest failed to disclose data showing decline of the northern goshawk (a management indicator species) in the area based on monitoring data, and likely harm to the goshawks from the project.  It also failed to evaluate monitoring results as required by the forest plan.  The Forest was not able to cure these violations by presenting new data to the court, but must complete additional disclosure required by NEPA, and the project was enjoined until that is done.  The court upheld the project decision with regard to forest plan requirements for elk and old growth, effects on grizzly bears, and a plan amendment affecting elk.  (The article includes a link to the court order.)

Meanwhile, a hearing in another Montana Forest Service case occurred (see Pintler Face Project on the Beaverhead-Deerlodge National Forest here.)  It led to this account of the current state of environmental attorneys:

When Christensen asked why the plaintiffs waited until this past February to file a lawsuit, Smith said the plaintiffs would have filed earlier but no environmental attorneys, including herself, were available. Smith said “it was a matter of supply and demand.” After the Trump administration rolled back many environmental protections, environmental attorneys have been in high demand.

(Hmmm.)

Settlement in Center for Biological Diversity v. U. S. Forest Service (D. Utah)

In a letter dated “July 2024,” the Ashley National Forest withdrew the decision notice for the ANF Aspen Restoration Project.  The notice refers to the project as “a condition-based management approach” for 147,000 acres that would have authorized “prescribed burning; selectively cutting conifers, aspen, or both; girdling conifers in aspen stands; root separation; protecting aspen from wildlife and livestock browsing; planting aspen and controlling competing vegetation; and/or inventory and monitoring.” It would have included designated roadless areas, without limiting the size of trees to be logged.  The Center referred to the Ashley as “the most important deciduous forest in western North America.”  The news release includes a link to the withdrawal letter (as well as the complaint); here is some news coverage.

  • Mining and religion

En banc hearing requested in Apache Stronghold v. U. S. A. (9th Cir.)

The 9th Circuit opinion was summarized here.  This article from a Mennonite news source demonstrates the wider interest in the First Amendment Free Exercise Clause interpretation that allowed mining to impair Native American religious practice on national forest lands.  “The Mennonite Church USA Executive Board and MC USA’s Pacific Southwest Mennonite Conference filed a friend-of-the-court brief April 25.  Nineteen additional churches and organizations — including Mennonite Mission Network, Mennonite Men and numerous MC USA-affiliated congregations — also signed on as friends of the court.”

BLM

Court decision in Earthworks v. U. S. Department of the Interior (D.C. Cir.)

On June 25, the circuit court affirmed (by a 2-1 vote) a district court holding that unlimited amounts of federal land are available to mining companies for mill sites for processing and waste disposal.  The decision backs the BLM’s interpretation of the 1872 mining law that limited such sites to 5 acres, but did not explicitly limit how many sites could be claimed. (Deference was not an issue here because the court (or at least its majority) considered the statute to be unambiguous.)  A copy of the opinion is here.

 

New lawsuits:  Alaska v. BLM (D. Alaska), ConocoPhillips Alaska v. Interior (D. Alaska), and North Slope Exploration LLC v. Interior (D. Alaska)

Three lawsuits were filed last week against the decision by the BLM to close about 11 million acres of the 23.5 million-acre National Petroleum Reserve to oil and gas extraction.  The Naval Petroleum Reserves Production Act directed the department to lease the reserve to oil drillers.  The BLM’s rule aims to protect environmentally sensitive wetlands along Alaska’s North Slope and protect caribou herds, migratory birds, and other wildlife. Of note regarding judicial deference, in one of the complaints:  “The company said the Interior Department’s implementation of the law governing the NPR-A is subject to judicial review according to the US Supreme Court’s June ruling in Loper Bright Enterprises v. Raimondo. The ruling said courts no longer need to defer to federal agencies’ interpretation of ambiguous federal laws.”  (The article includes links to all of the complaints, but they are paywalled.)

Lawsuit follow-up.

After conservation groups sued in 2020 over drilling approved (by the Trump Administration) that included the soon-to-be Labyrinth Canyon Wilderness Area, the BLM (under the Biden Administration) agreed to review the decision. Now the agency has upheld most of its previous decisions by reaffirming 51 oil and gas leases, including the helium well.  The prospects for finding anything valuable appear to be low.

ENDANGERED SPECIES

Court decision in Cascadia Wildlands v. Scott Timber Co.  (9th Cir.)

On June 26, the circuit court affirmed a district court ruling that logging 49 acres of mature and old growth trees on private forest lands would violate the Endangered Species Act because it would impair breeding of the marbled murrelet, causing illegal “take.”  The opinion may be found here. “It’s the first time a private timber operator has been held to account under the Federal Endangered Species Act,” Nick Cady, Cascadia Wildlands legal director, said.

Settlement in Center for Biological Diversity v. Williams (E.D. Illinois)

On July 1, the U. S. Fish and Wildlife Service agreed to to reconsider Endangered Species Act protections for the Kirtland’s snake by June 30, 2026.  Kirtland’s snakes occupy moist, open meadow or wet prairie habitats, and old fields, and are found almost exclusively in the Midwest.  Within the Eastern Region of the Forest Service, the Kirtland’s snake is designated as a Regional Forester Sensitive Species on the Hoosier National Forest in Indiana and on the Huron-Manistee National Forest in Michigan, and it may be adversely affected by mowing, burning, and logging.  However, according to the Forest Service, most of the known populations of Kirtland’s snakes currently reside in urban areas.

OTHER

Supreme Court review of Eagle County v. Surface Transportation Board (D.C. Cir.)

The Supreme Court will take a rare look at NEPA requirements in this case involving construction of an 88-mile railway through the Ashley National Forest that would allow vastly increased oil production in Utah by shipping it along the Colorado River in Colorado.  As discussed here, the circuit court found that various effects had not been addressed in the EIS.  (The Forest Service is not a party.)

The U. S. Supreme Court has broadened the vulnerability of federal agencies to lawsuits by expanding the statute of limitations for challenging agency action under the Administrative Procedure Act.  The six-year time period does not begin to run until the specific plaintiff in question has been injured instead of when the agency action became final.  This case, Corner Post v. Board of Governors of the Federal Reserve, involved a regulation establishing the maximum interchange fees for debit card transactions, but the APA applies to every agency’s actions. The opinion focused on “new entrants to a regulated space,” meaning parties who were not aware of the decision they want to challenge because they were not in a position to be affected by it until now.  It’s not hard to see that reasoning applying to land management regulations, or possibly even other long-term decisions like forest plans, including those where the opportunity to exhaust administrative remedies is long past.

 

 

 

 

 

Featured lawsuit – Flathead National Forest plan revision (and the effect of no Chevron judicial deference)

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Court decision in Swan View Coalition v. Haaland (D. Montana)

On June 28, the district judge adopted the magistrate judge’s findings that the Forest Service violated the Endangered Species Act because it failed to adequately consider the effects on grizzly bears and bull trout of closed roads and unauthorized use of roads when it adopted its revised forest plan (discussed in depth here).  This article has a link to the court order, which remands the Fish and Wildlife Service’s Biological Opinion, but does not disturb the forest plan, or enjoin any projects.

This is the second time the Forest Service has lost this case, and I thought it might be interesting to explore this example of the role the courts have in considering scientific issues related to land management, and whether such judicial review looks different with Chevron deference to agency expertise no longer the law.  The scientific question in this case concerns the effects of “closed” roads on grizzly bears and bull trout – more specifically the difference between the effects of roads closed by obliteration and restoration (as required by the prior forest plan) and roads closed by signs and barriers, without removing culverts (as required by the revised forest plan, and referred to as “impassable” roads).  There are documented violations of the latter kinds of closures, and the agencies agree that they are less than 100% effective.  However, the Fish and Wildlife Service declined to consider the effects of these closed roads or their use on the listed species in its biological opinion.

This court found held that the FWS violated the ESA because the agency “offered an explanation for its decision to exclude impassable roads from (total road density) that runs counter to the evidence before the agency.”  With regard to grizzly bears, the agency “failed to address the exclusion of unauthorized motorized use from road density calculations and, to the extent the agency did address this issue, failed to articulate a satisfactory explanation regarding its decision.” Regarding bull trout, the court ruled that FWS violated the ESA because the agency “failed to address its decision to abandon the culvert removal requirement with respect to impassable roads.”

This court largely followed the reasoning in a prior case regarding deference to the agencies (referring to that prior opinion):  “The Court explained that, while it would defer to the agencies’ expertise on how to account for unauthorized motorized access going forward, ‘the agencies must actually exercise that expertise for their decision to stand.’ Id. at 1138. In summary, ‘[c]laiming a total inability to ascertain, or even estimate, effects of unauthorized motorized use on OMRD, TMRD, and Core—and, by extension, the effects on grizzly bears—despite the evidence in the record . . . does not suffice.’”

Courts can tell from the administrative record whether an agency actually considered the scientific facts in the record, and the agency will be found arbitrary if it did not.  This is an application of the requirements of the Administrative Procedure Act, not an interpretation of a subject matter statute.  Such cases wouldn’t have invoked Chevron deference in the past, and so nothing should change.

We might perceive a little wiggle room in the question of a “satisfactory” explanation of how the facts were considered.  The court walks through this question on pp. 29-33, where it refers to “logic” and whether the facts in the record support the statements made by the agencies.  It concludes that the explanation in this case “runs counter to the evidence before the agency.”  This still looks like an APA record review rather than one involving interpretations of law or fact that could have raised questions about Chevron deference.  I don’t see evidence that the judge is usurping agency expertise.

GAO Report on USFS Rx Fire Program

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Article about a new GAO report (thanks to Michael Archer for the link to the article).

FOREST SERVICE: Fully Following Leading Practices for Agency Reforms Would Strengthen Prescribed Fire Program

Why GAO Did This Study
Wildfire severity has increased across the U.S., causing loss of life and property and damage to ecosystems. To mitigate wildfire risk and improve forest health, the Forest Service uses prescribed fire to reduce fuels. The agency reports that less than 1 percent of prescribed fires escape control and become wildfires, but escapes can have significant effects.

GAO was asked to review the Forest Service’s efforts to improve its prescribed fire program following two escapes in New Mexico in 2022. This report addresses, among other things, (1) steps the agency has taken to reform its prescribed fire program and (2) the extent to which it has followed selected leading practices for effective agency reforms. GAO reviewed relevant Forest Service documents; interviewed officials from agency headquarters, regional offices, and national forests; interviewed stakeholders and Tribes; and conducted in-person site visits and interviews in Idaho and New Mexico.

What GAO Recommends
GAO is making four recommendations to the Forest Service related to its prescribed fire efforts: (1) develop outcome-oriented goals and performance measures; (2) develop and implement a strategic workforce plan; (3) develop an implementation plan for its reform efforts; and (4) assess the appropriate level of resources to maintain day-to-day management of reform efforts. The Forest Service generally agreed with the report and recommendations, and plans to develop and implement a corrective action plan to address the findings.

From Appendix 1:

From 2012 through 2021, the Forest Service conducted around 50,000 prescribed fire projects, 43 of which resulted in an escape declaration (0.09 percent). These escapes occurred throughout eight of the Forest Service’s nine regions and varied in size, impacts, and characteristics (see table 3). Specifically, our review of Forest Service documents found:

• The area burned outside of the planned project boundary ranged from less than an acre to approximately 20,000 acres, with the median escape being 68 acres.
• Of the 43 escapes, 24 (56 percent) remained within Forest Service lands and 19 (44 percent) spread onto non-Forest Service lands.1
• Damage was reported for 30 of the 43 escapes (70 percent).2 The type of damage varied, with 24 escapes reporting damage to natural resources (e.g., trees and other vegetation), seven escapes reporting damage to improvements (e.g., fences, signs, roads), and six escapes reporting damage to structures (e.g., houses, outbuildings).
• Complexity of the escaped prescribed fires varied, with 29 of the escapes (67 percent) occurring from projects rated as moderate complexity in the prescribed fire plan, 12 escapes (28 percent) from projects rated as low complexity, and two escapes (5 percent) from projects rated as high-complexity.
• Twenty-seven of the escapes (63 percent) were from a broadcast burn, whereas 16 of the escapes (37 percent) were pile burns.
• Drought conditions were present for 18 of the escapes (42 percent).3

 

 

Outdoor Americans With Disabilities Act: Building More Roads or Keeping Open Roads Open?

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Thanks to Nick Smith for this one.  Interesting headline in the Salt Lake Tribune.

“Plans to build more roads on public lands will help disabled Americans, Mike Lee says. Disabled hikers disagree.”

Can we imagine that some disabled Americans prefer roads and others prefer trails?  Are there people who can honestly say that no disabled Americans will be helped by more roads?  Of course, headlines are silly but…

Many TSW-ites are more familiar with all this than I, but I will state one thing I’ve found in my years of federal lands work- it’s different, and more difficult,  for federal decisions to stop allowing something, than to turn down a request to start something new.   One reason is that there are people who are using or doing it who support the activity.  The other is that the environmental effects are known.   Therefore,  “building lots of new roads” is substantially different from “keeping existing roads open.” So let’s start there,  because there seem to be two conversations going on in this piece.

First is Mike Lee’s bill.

Here’s what his office says about it in the one-pager.

Senator Lee introduced the Outdoor Americans with Disabilities Act to ensure that public land is accessible to all Americans, not just the able-bodied. This legislation defines “disability-accessible land” as one square mile with at least 2.5 miles of authorized roads accessible to motorized vehicles. It directs federal land management agencies to coordinate with state, local, and Tribal governments to determine which roads offer access to diverse recreation opportunities and prioritize access to those roads. The bill also requires that local stakeholders be involved in decisions regarding road closures in their communities.
Bill Specifics
• Defines disability-accessible land as one square mile of public land with at least 2.5 miles of authorized roads accessible to motorized vehicles or offroad vehicles
• Requires the Secretary of the Interior and the Secretary of Agriculture, acting through the Chief of the Forest Service, to prioritize updating travel management plans and motor vehicle use of the Bureau of Land Management and the Forest Service
• When developing motor vehicle use maps, the Secretary concerned must:
Account for the length of roads in each square mile of public land under their management
Prioritize roads that provide access to diverse recreation opportunities
Coordinate with federal agencies, state, county, and local governments, and Tribal governments to determine which roads offer the best access to disability-accessible land
Have the authority to revise routes on public land in response to changes in local conditions
• The Secretary concerned may not close roads that would disqualify land from disability accessible status unless the road was for temporary emergency access or it is a threat to the
health and safety of visitors
• The Secretary concerned will provide notice of any proposed road closures, allow for a public comment period, and conduct a public hearing regarding the closure
• For any roads closed, the Secretary concerned will nominate and establish a new road
• Road closures and new roads will be categorically exempt from NEPA
• Nothing in this Act establishes new roads or trails or prohibits the Secretary concerned from establishing new roads or trails on public land for motorized and off-road vehicles

I could be wrong, and I ‘m sure folks will tell me if I am, but it doesn’t sound like building new roads, but keeping access to existing ones.

Utah Sen. Mike Lee is spearheading legislation he says will allow more people to access America’s natural wonders — by building more roads atop them.

While Lee contends the Outdoor Americans with Disabilities Act will make outdoor access more equitable, some disability advocates told The Salt Lake Tribune that the effort felt disingenuous and played into stereotypes they are trying to dispel.

Syren Nagakyrie, founder and director of the nonprofit Disabled Hikers, called the bill “a blatant attempt to scapegoat disability as an excuse to build more roads.”

“People who already oppose disability inclusion and accessibility already blame disabled people, saying that what we want is to ‘pave over the wilderness,’” they said. “That is absolutely not what we want in any way, shape or form. This bill really is just leaning into that.”

I’m always interested in the groups reporters choose to interview.  Disabled Hikers seems like a great group, there’s an NY Times story about them here, and they produce guides to trails for disabled folks.  Still,  Nagakyrie seems to be saying  that the bill is bad because third parties will think bad things about disabled people because of it. That is, people who already oppose disability inclusion and accessibility.  So.. some disabled people should not have what they want.. motorized access.. because some other people who already think bad things will think more bad things about disabled people.   It seems to be that’s a restriction on disabled peoples’ agency.   Why can’t (disabled) hikers hike and OHVers ride? Doesn’t inclusion mean… well.. inclusion?

The BLM released a new travel management plan for the Labyrinth Rims/Gemini Bridges Travel Management Area in late September. The update closed 317.2 miles of routes in the 300,000-acre area that were previously open to off-highway and passenger vehicles. The plan left 800 miles of routes open to motorized use.

Lee’s legislation would have the BLM and the U.S. Forest Service develop and update travel management plans to prioritize accessibility. Roads on public lands should, according to the bill, allow access for hunting, fishing, hiking, camping, off-roading and other recreational activities to “ensure the public land is disability-accessible land.”

The legislation defines “disability-accessible land” as land with at least 2.5 miles of roads accessible to motorized or off-road vehicles per square mile.

Lee’s bill also specifies that the agencies should not close roads to motorized vehicles on public land to the extent that people with disabilities cannot access it.

In its plan for Labyrinth Rims/Gemini Bridges, the BLM said that it closed roads to protect wildlife, preserve sensitive watersheds and safeguard cultural sites. The agency also cited conflicts between motorized and non-motorized recreators, like off-road vehicle users and river-runners.

“Federal land managers are required to analyze the impacts of their decisions on dirt, but they have no requirement to ensure that their decisions don’t hurt disabled Americans,” said Ben Burr, executive director of the recreation advocacy group BlueRibbon Coalition.

“Every time decisions are announced to close more of our backcountry roads, I hear from our disabled Americans that they feel discriminated against and ignored,” he added.

But again it seems like the bill is not so much about building but about keeping open.

Nagakyrie said there are better ways to increase accessibility on public lands that don’t require road-building, like increasing access to motorized wheelchairs.

But who decides what is “better”? Do other disabled people get a vote?

Staunton State Park and Great Sand Dunes National Park, both in Colorado, offer them for disabled visitors to experience those landscapes.

“From a public lands perspective, forcing the BLM and Forest Service to add thousands of miles of roads across otherwise pristine land is a terrible idea,” said Aaron Weiss, deputy director of conservation nonprofit Center for Western Priorities, “and does not actually do anything to increase accessibility.”

“This bill seems like a stunt,” he continued.

Again, it doesn’t seem to be about adding roads. It may well not go anywhere. Still, it seems to me that if the FS and BLM are closing roads, keeping them open would increase accessbility compared to closing them.

In an email, a spokesperson for Sen. Lee pointed to support for the bill from the off-roading group The Trail Hero, which “specializes in providing motorized access to the outdoors for people with special needs, veterans, and others who require mobility assistance.”

“These user groups are not asking to forge new trails,” said the group’s founder Rich Klein. “They just want to keep existing routes and trails open so that they can get the same therapeutic experience from nature that able-bodied citizens have access to.”

If I’d done the reporting, I would have tried to figure out exactly what in the bill was about making new trails versus not closing ones people already use. Otherwise folks like Klein and Weiss seem to be talking about different bills.