Judge Halts Tree-cutting in Arizona and New Mexico- News and Questions

The Southwest seems to be the area of interest of the week. Since yesterday, I have seen a couple of news stories on this “judge halts tree-cutting” order. This AP story in the Washington Post had more information and quoted someone with a different point of view. Here it is.

The project that raised my interest was the one maintaining the powerline- if that is in fact harming the owl. I wouldn’t think owls would like to be around powerlines.. maybe they prefer them for some reason? As a biologist, this makes me curious. So I looked up this project (thanks to WEG putting the project names in the press release) and the first thing I found was this piece from FWS about…

On July 17, 2008, Arizona Ecological Services Office issued a biological opinion to the Forest Service, finishing over two years of work to help the Forest Service and utility companies in Arizona comply with the Endangered Species Act in their management of powerline corridors in five national forests in the state.

In 2006, in response to the severe wildfire threat and concerns over the need to remove hazardous vegetation along power line corridors on National Forest lands in Arizona, Arizona Ecological Services Office (AESO) entered into a section 7 consultation agreement with Region 3 of the Forest Service and six utility companies operating in Arizona. AESO established a consultation team of four biologists to work with the Forest Service and utility company biologists through two phases of the programmatic consultation. The first phase dealt with the immediate need to remove hazardous vegetation, and the second phase addressed longer term maintenance of vegetation and structures along existing corridors. In addition to the complexity of this two phase programmatic consultation, AESO needed to meet tight time frames so the companies could address the large backlog of maintenance work needed. Since many of these power lines service the metropolitan Phoenix area, loss of power because of tree falls and the potential for wildfires from overgrown vegetation was a significant issue. The project was complicated by the number of individuals and parties involved. Significant issues arose regarding how to characterize and deal with interrelated/interdependent effects and cumulative effects, and how to address incidental take for some of the species.

The AESO and Forest Service consultation teams worked closely with the companies throughout the process and to develop meaningful conservation measures to minimize impacts from vegetation clearing in these corridors. This programmatic consultation process has been put forth as a model for use in other states to streamline and expedite the section 7 consultation process for individual corridor maintenance projects.

It sounds like a great deal of work was done on this project (it’s a “model for other states”!), that services power lines to Phoenix and it was completed in 2008; this court order being in 2012. I’d like to hear the rest of the story from someone more familiar.

Here’s what Phase II is about according to this letter from FWS (the BO, I think).

The purpose of this consultation is the implementation of Phase II, which will cover all utility line maintenance related activities (i.e., hazard vegetation treatments, routine vegetation maintenance, routine and hazard aerial and ground-based utility inspection patrols, maintenance of lines, hardware and structures, and other associated actions) along utility corridors on NFS lands in Arizona for the next 10 years. Failure to address vegetation clearance and fuels hazards could result in wildfires, major power outages, and injury to life or property. Additionally, existing Federal regulations and utility standards require maintenance2, and new Federal energy regulations mandate vegetation inspections and treatment to maintain lines in safe and reliable operating conditions (NERC Reliability Standard FAC-003-1). Special use permits for the individual lines may expire and be renewed within the 10-year timeframe of this project. If the special use permit requires the utility to operate or expand their impact area beyond what is considered in this consultation, the FS will review the proposed changes and re-initiate consultation with FWS, as appropriate.

It’s still not clear to me what aspects of the project (i.e., hazard vegetation treatments, routine vegetation maintenance, routine and hazard aerial and ground-based utility inspection patrols, maintenance of lines, hardware and structures, and other associated actions) are bad for owls – if hazardous vegetation includes trees that will fall on power lines, are they good habitat? Wouldn’t people maintaining the line be disruptive, so it wouldn’t be good nesting territory anyway?

On the Perk-Grindstone project (not sure I have the correct one, but..) these are some minutes from a public meeting on the planning of what appears to be the Grindstone project at issue. It appears to be a fuels reduction project associated with the Village of Ruidoso. Couldn’t easily find the EIS. but here’s the ROD, and how it addressed the Mexican Spotted Owl.

Mexican Spotted Owl: Alternative 3 would result in approximately 26 percent of spotted owl protected habitat in the project area being adversely impacted, by reducing the number of trees larger than 9 inches in diameter (199 acres within protected activity centers and 422
Record of Decision, Perk-Grindstone Fuel Reduction Project 3
acres outside protected activity centers.) While this is likely to cause some potential adverse impacts to spotted owls and their habitat in the short term, the EIS and biological assessment indicate that these treatments could beneficially affect spotted owl habitat in the long term by reducing the potential extent and magnitude of stand-replacing wildfires in spotted owl habitat.

Also it says in the AP article that grazing is another activity can harm the owl.. is this true?

Here’s the court order which talks about the three decisions only, nothing about a broader range of activities.

Here’s the WildEarth Guardians press release that mentions the project names.

Rep. Pearce seems to be making the point we often hear from Foto- that if owls need trees and trees burn up, then is that good for owls?

Also, why pick these three projects out of all in Az and NM?

Below is the AP story.

Judge halts tree-cutting projects in NM, Arizona in suit over Mexican spotted owl protection

ALBUQUERQUE, N.M. — A federal judge has halted three tree-cutting projects in Arizona and New Mexico that environmentalists contend could harm the Mexican spotted owl.

WildEarth Guardians sued the U.S. Forest Service in 2010, claiming the agency ignored its responsibility to track the owl’s numbers in the two states. The judge’s decision Thursday to grant a preliminary injunction means the projects cannot move forward until the Forest Service consults with the U.S. Fish and Wildlife Service on the impacts to the owls.

A Mexican spotted owl is shown in this undated file photo provided by the Center for Biological Diversity. A federal judge has put a stop to forest thinning and maintenance projects in Arizona and New Mexico that environmentalists contend could harm the Mexican spotted owl, according to a report Friday Jan. 6, 2012.

“The bottom line is we need to know whether the spotted owl is doing well or is declining,” said Bryan Bird, the director of WildEarth Guardians’ wild places program. “And we don’t know that right now because the Forest Service has failed — and they’ve admitted it — to collect that information.”

The owl found on national forest lands, from steep wooded canyons to dense forests, was first listed as threatened in 1993. More than 8 million acres in four Western states — Arizona, New Mexico, Utah and Colorado — have been set aside by Fish and Wildlife as critical habitat for the bird.

Federal biologists have said the biggest threat to the owls is destruction and modification of their nesting habitat.

Forest Service spokeswoman Cathie Schmidlin said Friday that the agency is contacting contractors and power companies to let them know of the court’s order. One of the projects is for fuel reduction in southern New Mexico’s Lincoln National Forest, while a utility maintenance project stretches across a handful of Arizona forests.

Schmidlin said logging activities on the Upper Beaver Creek Project on northern Arizona’s Coconino National Forest already have stopped.

U.S. District Judge David Bury in Tucson initially denied a request from WildEarth Guardians to put a stop to the projects but reconsidered at the group’s request. Bury wrote in his order Thursday that the injunction aligns with a decision in a companion case that was more broad but also cited concerns over the Mexican spotted owl.

The lawsuit claims the Forest Service continues to approve logging, grazing and other activities on the Southwest region’s 11 forests that could potentially harm the bird. It asked the court to keep the agency from approving or implementing any permits or projects on forest land in Arizona and New Mexico until the agency also prepares a biological assessment.

Bird said his group focused on the three projects out of dozens because it determined those had the most immediate impact to the owl that now will “get the attention it deserves.”

Rep. Steve Pearce, R-N.M., who has sponsored legislation to revitalize the Southwest’s timber industry and set aside parcels of forest land as sanctuaries for the owl, backed what he called a common sense approach to management by the Forest Service.

He said he’s heard from the Mescalero Apaches, whose reservation is surrounded by the Lincoln National Forest, that the owls appear to be thriving as a result of logging.

Overgrown forests are fire hazards that endanger people’s homes and threaten wildlife habitat, he said.

“While I agree that the spotted owl and other endangered species must be protected, we cannot do so at the cost of public safety and we cannot afford to do so without a legitimate reason,” he said.

Added note: I was working on this post on Saturday morning, when I listen to the Jonathan Schwartz show on WNYC. I couldn’t help but wonder, as I listened to him, whether if they were NYC’s power lines, would the work have been done already?

Finally I’d be interested in both a link to the lawsuit and to the FS response, if anyone knows where those might be found.

6 thoughts on “Judge Halts Tree-cutting in Arizona and New Mexico- News and Questions”

  1. Yet another example of the inflexible ESA not protecting essential habitat, like the nesting habitat of the spotted owls. Sadly, it “protects” those PACs from beneficial projects, too. America simply isn’t “progressive” enough to accepts science-based solutions, in favor of one-size-fits-all exclusions, based on emotions and rhetoric. Now, before you brand me as wanting to “eliminate the ESA”, it is my opinion that it simply needs adjustments for flexibility, to actually improve and protect those essential pockets of rare nesting habitat, which are continuing to disappear in wildfires. Also, how many PACs are within Let-Burn “Maximum Management Areas”? I wonder if a series of fuelbreaks around PACs could isolate the fire impacts of preserving radically-overgrown conditions “preserved” within. Sure, it would just about guarantee incineration of that PAC but, that would be “following the law” as it is today. OR, should PACs merely become part of a MMA, by legal default?

  2. Sharon, the lawsuit here is basically a parallel complaint to the one you blogged about here: http://ncfp.wordpress.com/2011/10/12/legal-decision-on-monitoring-sw-species/

    The injunctions have little to do with the actual project or the impacts on the owl. The projects themselves usually include separate BOs that include mitigations to minimize impacts… but these project-specific BOs are not considered by the court. Rather, the judge has issued a preliminary injunction because the FS has not met its monitoring obligations under the 2005 Biological Opinion for the Land and Resource Management Plans. The projects being enjoined are those named by the Plaintiffs and included some amount of harm to the MSO in the Biological Opinion.

  3. So, MD, are you saying that the Plaintiffs picked these three projects because they thought these projects had the greatest potential impact to the owl after the mitigations, or not considering the mitigations? Is there some rationale in the legal documents why these three projects were selected?

    • I believe the judge issued a preliminary injunction on these projects because the Plaintiffs asked him to. The plaintiffs chose these projects because these projects identified a potential to impact the owl and thus were assigned ‘take’ in the BO (some projects involved an endangered rattlesnake and not the owl). The take in some circumstances was related to tree cutting and in some circumstances it was related to disturbance from thinning or survey activities.


Leave a Comment