Month: February 2012

A Look at Judge Smith’s Dissent on Sierra Framework Case

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One good thing about the recent case is that because there was a dissenting judge (33% of total) we get to hear “both sides of the story” in the case. It sounds like the FS said that analyzing site specific projects impacts on fish made more sense than at the programmatic level. As I’ve said before, it’s hard to analyze impacts when you don’t know if, where, or when you will do a project, nor how it will be done. Judge Smith even quoted some similar thinking from the FEIS in his dissent, which I italicized below.

To analyze it more broadly, you have to make a host of assumptions, which are pretty much predicting the future. The best available science on our predictions of what will happen suggests that we are not too good at it. If we have a bad track record, making those assumptions and doing that analysis is not particularly enlightening or useful, and to some extent is a waste of taxpayer dollars compared to analysis when the details are known. One of the problems with having this debate- “how much and why”
about analysis – through court cases, is that it is never actually debated… judges have opinions and we move on. And as I’ve pointed out before 10th Circuit Roadless and 9th Circuit SNF seem to be going in different directions about site-specificity.

I don’t know if whether a judge is “liberal” or not affects their feelings about this case, as perhaps implied by the Bee reporter. If so, though, we could do a thought experiment about different random combinations of judges and potential outcomes.

The majority did refer to this note:

The Draft was criticized by the staff of the Forest Service’s Washington Office for Watershed, Fish, Wildlife, Air and Rare Plants. The staff wrote a letter complaining that there was no discussion of the effects of the logging and logging-related activities on fish:

Aquatic and Riparian: There needs to be a discussion of the effects of the new alternatives on riparian ecosystems, streams and fisheries. It is not sufficient to dismiss these effects as within the range of impacts discussed in the [2001] framework ․ without further analysis, given the activities proposed in Alternative S2. If the treatments [proposed in Alternative S2] will be sufficient to have their intended effect, there is a high likelihood that there will be significant and measurable direct, indirect and cumulative effects on the environment, which need to be analyzed and disclosed in this document.

To me, the depth of discussion in a programmatic document is really a NEPA question. If every time people wanted more discussion of something in a document and wrote a letter, that was absorbed by the court as a legitimate viewpoint, that would lead us into a even more massive quagmire.As far as I can tell, few people agree about the appropriate level of discussion for any impact, ever. The toggle switch for documentation is inevitably set to more.

Here’s the link to the opinion.
Let’s look at what dissenting Judge Smith says:

Fourth, the majority incorrectly asserts that there is “no explanation” for the Forest Service’s decision to defer more in-depth analysis of individual fish species. See, e.g., Maj. Op. 1027. However, the Forest Service clearly did explain its reasons for deferring in depth analysis until more site-specific projects were identified. Specifically, in its Record of Decision, the Forest Service stated,

Our ability to strategically place fuel treatments for optimum effectiveness has been compromised by the set of complicated rules in the [2001 Framework]. The standards and guidelines in that [Framework] are applied at the stand level, rather than by land allocations․ Some of the rules are so detailed that they prescribe down to one acre what is allowed, and require measuring change in canopy to ten percent increments, which is not consistently practical with existing measurement tools. This fine-scale approach limits our ability to make significant progress. ․ [O]ur ability to strategically place fuels treatments on the landscape has been compromised by the complexity of rules [which allows] ․ more habitat [to be] lost to wildfire․ This decision is intended to reverse that trend.

Record of Decision at 8–9; see also Appellee’s Br. at 6. As a result, the agency explained that the 2004 EIS was being implemented to “assure the most efficient and appropriate use of government resources․” Record of Decision at 23–24. The Forest Service primarily argued not that providing more analysis would be entirely impossible, but rather that “there was insufficient information and analytic tools for a meaningful analysis․” Appellee’s Br. at 48 (emphasis added). Therefore, the majority should have concluded that it was well within the Forest Service’s discretion to determine that the benefits of deferring in-depth analysis of aquatic species to provide more meaningful analysis outweighed any delays in information.

If the Forest Service commits to a site-specific project in the future, without engaging in the required level of NEPA analysis, then Pacific Rivers might have a viable NEPA claim. Indeed, it is likely that “[t]he deficiencies noted by the” majority opinion (regarding analysis of fish) “are precisely the omissions the Forest Service will need to correct in order to comply fully with NEPA” at a later time. Block, 690 F.2d at 763; see also N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 891 (9th Cir.1992) (approving a programmatic EIS that deferred detailed analysis until an application for a mining permit was submitted, but noting that “judicial estoppel precludes the Park Service from later arguing that it has no further duty to consider mitigation measures ․”).

Not only has the Forest Service affirmed many times that they plan to engage in further detailed analysis when specific projects are identified,7 but we have a legal duty to assume that the agency will perform that analysis. In Salmon River Concerned Citizens v. Robertson, we observed that courts should “assume that government agencies will ․ comply with their NEPA obligations in later stages of development.” 32 F.3d 1346, 1358 (9th Cir.1994) (quoting Conner, 848 F.2d at 1448).

B. The amount of programmatic, high-level analysis was sufficient to engage in informed decision-making regarding broad policies affecting all species, including fish.

The majority claims that the Forest Service “entirely failed to consider an important aspect of the problem” by not providing in-depth analysis regarding how the 2004 programmatic Framework would affect specific species of fish. Maj. Op. 1035 (citing Lands Council II, 537 F.3d at 987). But here, because the Forest Service chose to utilize a tiered NEPA analysis structure and implement a programmatic EIS, the relevant scope of “the problem” is whether the Forest Service “provide[d] ‘sufficient detail to foster informed decisionmaking.’ “ Friends of Yosemite Valley, 348 F.3d at 800 (quoting Lujan, 961 F.2d at 890–91). As discussed above, the majority is only able to claim otherwise by ignoring the proper standard of review and refusing to defer to the Forest Service’s discretion in determining the scope of its analysis. See Kleppe, 427 U.S. at 413 (agencies have discretion to “intelligently determine the scope of environmental analysis and review specific actions [they] may take”); Friends of Yosemite Valley, 348 F.3d at 800 (“[A] reviewing court [must] focus upon a proposal’s parameters as the agency defines them”) (alteration in original omitted) (quoting Block, 690 F.2d at 761). The scope of analysis in a programmatic EIS can include considerably less detail than in an EIS analyzing a site-specific project. See, e.g., Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993); Salmon River, 32 F.3d at 1357–58; Block, 690 F.2d at 761.

Thus, under the Forest Service’s tiered-analysis approach, the 2004 EIS provides sufficient high-level standards to guide future on-the-ground decisions affecting fish. These standards generally contemplate the relevant range of potential agency action and the consequences on various habitats in the Sierra Nevada. The 2004 Framework “begins by explaining that cumulative effects were analyzed in detail for the eight alternatives considered in the 2001 Framework.” Appellee’s Br. at 50. “It then identifies activities that have occurred” since the 2001 Framework, “including soil and water resource improvements, hazardous fuels reductions, wildfire suppression,” and road construction. Id.

Specifically regarding aquatic habitats (home to fish species), the Framework notes that these are one of the most “degraded of all habitats in the Sierra Nevada,” though much of the original problem was related to “lower elevation dams and diversions.” 1 SEIS at 3. The EIS observed that “[t]he greatest effects on the [a]quatic, [r]iparian and[m]eadow [e]cosystems will generally be from either mechanical fuel treatments or catastrophic wildfires.” Id. at 12, 96. “Fires can have extraordinary effects on watershed processes and, as a consequence, significantly influence aquatic organisms and the quality of aquatic habitats in many ways.” Id. at 208 (citation omitted).

These effects include “reductions in riparian shading and altered streamflows [that] can increase stream temperatures to extreme levels,” “[f]looding, surface erosion, and mass wasting ․ due to vegetation loss,” and “increases in sedimentation, debris flows, and wood inputs may occur” as well as “[c]omplete channel reorganization.” Id.

The Forest Service weighed “tradeoffs between potential aquatic ecosystem and water quality impacts from fuel management activities (mechanical treatment and prescribed fire) and risks associated with high severity wildfires.” Id. (citation omitted). It recognized that “with respect to aquatic ecosystems, there are arguments for and against the use of fuels treatments to reduce the extent and severity of future fires.” Id. (citation omitted). After providing this analysis, the EIS determined “alternatives that lower the risk of fire and have medium levels of treatment pose the least risk to aquatic and riparian system.” Id. at 12. Therefore, by allowing increased fuels treatments, the 2004 Framework would reduce the anticipated acres burned by just over 15% from the 2001 Framework. Id. at 98.

The Forest Service recognized that this approach “pose[d] higher short-term risks to aquatic resources because it prescribes larger amounts of mechanical treatments and greater treatment intensities.” Id. at 12, 97, 215. But the Forest Service concluded that this was mitigated by the expected long-term benefits to aquatic habitats resulting from reducing wildfires. Id. The Forest Service also asserted its intent to reduce any short-term threats through objectives listed in its “Aquatic Management Strategy,” best management practices, and goals related to “landscape-level conditions” and “land allocations” that would be applied during “project level analysis.” Id. at 12, 97, 207, 210, 215. It was reasonable for the Forest Service to defer more specific analysis of the proposal’s effect on aquatic species, because “[p]otential treatment effects on aquatic, riparian and meadow ecosystems are largely a function of the amounts, types, intensities, and locations of treatments and the standards by which they are implemented.” Id. at 210.

Although the majority correctly notes that the 2004 Framework anticipates considerably more logging in the forests, the majority ignores the fact that much of that logging may never occur. For example, 214 million board feet were offered for sale on average between FY 2000–2002, but only 118 million were actually sold—approximately 55%. Id. at 174–75. Similarly, only 58% of the fuel treatments projected under the 2001 Framework were carried out in the first three years of the Framework. Id.; Appellee’s Br. at 22–23. Therefore, the Forest Service reasonably concluded that it would be inefficient to perform a detailed analysis of the impact of activities that may never take place, and the 2004 EIS contains sufficient analysis of the probable consequences of increased fuel management at the programmatic level.

The 2004 Framework identified roads as another “critical component” of the risk and benefit “tradeoffs” to aquatic species, which include fish. 1 SEIS at 209. The EIS explained that roads are just behind wildfires in their potential effect on “aquatic ecosystems and water quality in forested environments.” Id. The EIS cited studies discussing how “roads can deliver more sediment to streams than any other human disturbance in forested environments.” Id. (citation omitted). However, the studies also indicated that “surface erosion from roads can be reduced through improved design, construction, and maintenance practices,” and “[p]roper road location, drainage, surfacing, and cut slope and fill slope treatments are important in limiting effects.” Id. (citation omitted). The Forest Service explained that the proposed “modest reduction in overall road miles, and improved road conditions,” subsequently adopted in the 2004 Framework, were some of “the most important aspects of reducing risks to aquatic resources.” Id. at 215.

The Forest Service determined that, because many details of actual on-the-ground activities were yet unknown, a more detailed analysis would be appropriately conducted when specific projects were identified. For example, the EIS explained that “actual locations and miles of roadwork[will] be determined through project-level planning and analysis.” 2 SEIS at 66. Changing the location of a proposed road by just a few hundred feet could make a substantial difference in the impact it had on riparian areas and on fish. A different location might have significantly different vegetation, soil type, and topography. Changing the location could even place a road in a completely different drainage basin, potentially impacting entirely different species of fish. See, e.g., Biological Assessment for SNFPA SEIS 146, July 30, 2003 (Paiute cutthroat trout found only in 14.5 miles of streams).

The EIS explained that “road management does not vary substantially between [the 2001 Framework and the 2004 Framework]. Under both alternatives, the ․ biological effects of roads, as previously described, would be reduced across the bioregion․” 1 SEIS at 212. The EIS further noted that, under the 2004 Framework, there would be a decrease in the net miles of roads. Id. (under the 2004 Framework, “1175 miles would be decommissioned and 115 miles of new road would be constructed”). Although the miles of reconstructed roads would almost double and may have short-term impacts, reconstructed roads would be expected to “improve water quality and aquatic habitat․” Id.

The 2004 EIS also provided analysis of the effects to watersheds from on-the-ground activity that the Forest Service might permit under the Framework. The Framework explained that, as a broad-based policy, future projects should remain protective of wildlife but strive for more effective reduction of hazardous fuels. See, e.g., Appellee’s Br. at 6, 9, 36, 54. It also identified activities that have occurred since the 2001 Framework, including soil and water resource improvements, hazardous fuels reductions, wildfire suppression, and road construction. Id. at 50. Based on this information, it analyzed combined or synergistic effects of the elements of the 2004 Framework on aquatic ecosystems and species, explaining that the 2001 and 2004 Frameworks are expected to have similar effects, because both alternatives are required to meet soil quality standards. Id. at 47–48.

Similarly, the EIS addressed the impacts of grazing with sufficient detail to satisfy NEPA on a programmatic level. As with logging and road construction, the Framework calls for a flexible approach based on specific conditions, rather than a full-scale analysis at this stage. The same 2001 standards will continue to be in effect and “are expected to reduce erosion of meadows and improve aquatic habitat conditions by facilitating the growth of stabilizing vegetation along streams.” 1 SEIS at 214. The 2001 and the 2004 Frameworks primarily differ in that changes to utilization and stubble heights may be allowed in the 2004 Framework when current range conditions are “good to excellent” (and after “rigorous[ ] evaluat[ion]”). Id. Monitoring requirements under this flexible approach will “minimize[ ] differences in effects on aquatic ․ ecosystems between the [2001 and 2004 Frameworks].” Id.

Thus, after recognizing the general impact that various proposals could have on the environment and the measures that could mitigate those effects in the programmatic EIS, the Forest Service reasonably deferred the detailed analysis of future site-specific projects. Based on this analysis, the Forest Service clearly did not “entirely fail[ ]” to consider an important aspect of the programmatic analysis required to provide informed decision-making. The majority may have preferred more specific analysis about individual fish species, but such preference is not a justifiable reason under NEPA to disregard the agency’s analysis as arbitrary and capricious.

These CEQ guidelines might be also considered from the recent ones put out for public comment:

Concise NEPA Documents
Agencies are encouraged to concentrate on environmental analysis in their EAs and EISs,
not to produce an encyclopedia of all applicable information.16 Environmental analysis should
focus on significant issues, discussing insignificant issues only briefly.17 Impacts should be
discussed in proportion to their significance, and if the issues are not deemed significant there
should be only enough discussion to show why more study is not warranted.18 Scoping,19
incorporation by reference,20 and integration of other environmental analyses21 are additional
methods that may be used to avoid redundant or repetitive discussion of issues.22
All NEPA environmental documents, not just EISs, should be written in plain language,23
follow a clear format, and emphasize important portions of the impact analysis over mere
background material. Clarity and consistency ensure that the substance of the agency’s analysis
is understood clearly, avoiding unnecessary confusion or risk of litigation that could result from
an ambiguous or opaque analysis. The CEQ Regulations indicate that the text of a final EIS that
addresses the purpose and need, alternatives, affected environment, and environmental
consequences should normally be less than 150 pages and a final EIS for proposals of unusual
scope or complexity should normally be less than 300 pages.24
In light of the growth of environmental requirements since the publication of the CEQ
Regulations, and the desire to use the EIS to address, via integration, those requirements, it is
recognized that there will be a range of appropriate lengths of EISs. Nevertheless, agencies
should keep EISs as concise as possible (continuing to relegate relevant studies and technical
analyses to appendices) and no longer than necessary to comply with NEPA and the other legal
and regulatory requirements being addressed in the EIS, and to provide decision makers and the
public with the information they need to assess the significant environmental effects of the action
under review. Length should vary with the number, complexity and significance of potential
environmental problems.

And

Incorporation by Reference
Incorporation by reference is another method that provides efficiency and timesaving
when preparing either an EA or an EIS. The CEQ Regulations direct agencies to incorporate
material into an EIS by reference to reduce the size of the EIS and avoid duplicative effort. An
agency must cite the incorporated material in an EIS and briefly describe the content. An
agency may not incorporate any material by reference in an EIS unless the material is reasonably
available for inspection by potentially interested persons within the time allowed for comment.64

The goal should be to conduct concurrent rather than sequential processes whenever
appropriate. In situations where one aspect of a project is within the particular expertise or
jurisdiction of another agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more efficient.

Parsing Economic Sustainability: 2012 NFMA Rule

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To make sense of economic sustainability we have to delve into sustainability. Then we can see what sense is (or is not) made of ‘economic sustainability’ in the 2012 proposed NFMA rule (pdf).

Sustainability
At root, what we call sustainability (Wikipedia link) is a vision quest—a movement to better align human action with Nature and natural systems evolution. In Wikipedia, sustainability is said to have ecological, social and economic dimensions. All dimensions are interconnected. Sustainability found its way into the 2000 NFMA rule, and has been there since. But the framing has been tweaked at bit since. Let’s take a close look at “economic sustainability” as framed in the newly proposed NFMA rule, in the context of the overall quest for sustainability.

Social and Economic Sustainability

§ 219.8 SUSTAINABILITY. …
(b) Social and economic sustainability. The plan must include plan components, including standards or guidelines, to guide the plan area’s contribution to social and economic sustainability, taking into account:
(1) Social, cultural, and economic conditions relevant to the area influenced by the plan;
(2) Sustainable recreation; including recreation settings, opportunities, and access; and scenic character;
(3) Multiple uses that contribute to local, regional, and national economies in a sustainable manner;
(4) Ecosystem services;
(5) Cultural and historic resources and uses; and
(6) Opportunities to connect people with nature.

Sustainability Defined

§ 219.19 DEFINITIONS. … Sustainability. The capability to meet the needs of the present generation without compromising the ability of future generations to meet their needs. For purposes of this part, “ecological sustainability” refers to the capability of ecosystems to maintain ecological integrity; “economic sustainability” refers to the capability of society to produce and consume or otherwise benefit from goods and services including contributions to jobs and market and nonmarket benefits; and “social sustainability” refers to the capability of society to support the network of relationships, traditions, culture, and activities that connect people to the land and to one another, and support vibrant communities. {emphasis added}

I don’t quibble with the framing on social sustainability, but the language on economic sustainability seems tortured to me. Worse perchance is the fact that what is called ‘economic sustainability’ is not linked to ‘ecological sustainability’, not even to ‘social sustainability’. How bizarre is this ‘economic sustainability’ frame? As I read the 2012 rule, economic actors can do whatever they want with an umbrella of ‘economic sustainability’ overhead. Is this by intent? By oversight? Or am I off base in my allegation?

I looked to the 2000 NFMA Rule (pdf) to see if they had allowed such discretion. Nope. Not that I agreed with that rule either, but at least that particular mistake was avoided. I went to the 2005 rule (pdf) to see if the economic sustainability language was separate from ecological sustainability. Yep. This is where it began. It was framed as if economic sustainability and ecological sustainability were competitors instead of compliments. The 2008 rule (pdf) is similar to the 2005 rule in this regard. And so is the proposed 2012 rule.

The Wikipedia page on Sustainability, by contrast does not allow for such separation of ecological, social and economics in their rendition of sustainability. In Wikipedia, sustainability is said to have ecological, social and economic ‘dimensions’. All is interconnected.

Perhaps I’m nitpicking. But I believe that something is lost when ‘dimensions’ or aspects of sustainability are framed separately as if they are independent, without interconnections to affirm wholeness. Bridging the gap from philosophy to actionable procedure proves difficult when dealing with something as novel, important, and threatening to the status quo as sustainability. I get that. But the Forest Service has had a few years to mull over this misstep. How was it missed? Or was the separation set up on purpose? Anyone care to clear the air on this?

Personal Addendum (for sustainability nuts)
I began promoting sustainability in the early 1990s (see, Eco-Watch Archives, particularly 1991 , 1994, 1995). In 1994 Zane Cornett and I even proffered a definition for sustainability in the context of what we then called ecosystem management. Our definition, like most others, focuses both on the need for humans to relate better to the environment, and for humans to act in less destructive ways toward the environment. Like most others we tied ALL together, following John Muir: “When we try to pick out anything by itself, we find it hitched to everything else in the Universe.” Here is our rendition:

Sustainability is a relationship between dynamic cultural, economic, and biophysical systems associated across the landscape such that quality of life for humans continues — both for individuals and cultures. It is a relationship in which the effects of human activities do not threaten the integrity of the self-organizing systems that provide the context for these activities.

To further clarify this definition of sustainability, we need a complementary definition for integrity. The philosophy of ecosystem management integrates biophysical, cultural, and economic systems into the single concept of “ecosystems”.

An ecosystem has integrity if it retains its complexity and capacity for self-organization (arguably its health) and sufficient diversity, within its structures and functions, to maintain the ecosystem’s self-organizing complexity through time.

The definition for integrity is applicable to each of the economic, cultural, and biophysical subsystems, as well as to the integrated ecosystem.

At the end of the 1998, when I penned my First Epistle to the Clinton Era NFMA Committee of Scientists, I anchored the whole of my commentary around sustainability and the contextual, multi-scale/scope nature of public lands management. To approach sustainability, public lands management must interrelate various ecological and social systems at various scale across multiple ownerships. Anything short of this is to miss important linkages needed to inform prudent decision-making in setting policy, in program development, and project design. At least that was how I saw it then. I’m still preaching that gospel today, e.g my Adaptive Governance Roadmap for a NFMA rule rewrite.

Finding Common Ground: Stimson Forestlands Conservation Project

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The Yaak River at the Kootenai River confluence is located in the area of a proposed 28,000-acre conservation easement in Lincoln County. - Contributed photo by Randy Beacham

Finding Common Ground

http://www.flatheadbeacon.com/articles/article/finding_common_ground/26535/
Also here’s a link to all the Forest Legacy projects this year.

Logging, public access and wildlife protection merge in 28,000-acre conservation easement near Troy
The Yaak River at the Kootenai River confluence is located in the area of a proposed 28,000-acre conservation easement in Lincoln County. – Contributed photo by Randy Beacham
By Myers Reece, 02-08-12

Deep in northwestern Montana near the Idaho border, an expansive 28,000-acre conservation easement proposal is bringing together a diverse group of interests, with conservationists, loggers, wildlife managers and outdoor enthusiasts discovering they can all agree on a common vision: protecting working forestland from development while keeping it open to public recreation.

Thanks to a recent $6.5 million federal grant, their vision is inching, if not accelerating, toward becoming a reality.

Coordinators for the Stimson Forestlands Conservation Project believe the easement could serve as an example of how land can be shared for both conservation and commercial purposes, modeled after nearby easements in the Fisher and Thompson river valleys, along with an easement in the Swan Valley.

Those other projects all involved Plum Creek Timber Company land. But Barry Dexter, a land manager for Stimson Lumber Company, said the proposed 28,000-acre easement in Lincoln County is “uncharted territory for us.”

“This is really our first full-scale conservation easement,” Dexter said.

Mired in a slumping timber market, Stimson and other timber companies have been looking to either sell off land or find a financially viable way to maintain ownership. Stimson, based out Portland, Ore., has historically operated throughout western Montana and once had a mill in Libby that is now shuttered.

After being approached about a conservation easement, Dexter said Stimson researched the idea and decided it was in the best interest of both the company and the public.

“The last thing we wanted to do was have to subdivide that property and have to sell it off,” Dexter said. “There’s so much subdividing that’s gone on over the past 10 years in Montana and Idaho and really over the West.”

Stimson is working with Montana Fish, Wildlife and Parks and the Trust for Public Land on creating the easement, which would permanently safeguard a large chunk of valuable land surrounding Troy from development, while continuing public access and timber harvest rights.

The land, much of which is located only minutes from Troy, is a popular destination for a number of recreational activities, including hunting, fishing, berry picking and hiking. It is also crucial habitat for threatened Cabinet-Yaak grizzly bears, bull trout and redband trout, Montana’s only native species of rainbow trout. The Kootenai River and tributaries run through the property.

Deb Love, the Trust for Public Land’s Northern Rockies director in Bozeman, notes that many conservation easements, such as those on private ranchlands, don’t provide a right to public access. For this reason, as well as the location’s ecological importance, Love said the Stimson easement is distinctive, especially considering that logging fits into the equation.

“It really is a win-win for everybody,” Love said. “You are ensuring working land and protecting wildlife and ensuring public access.”

Under the easement, Stimson will continue to own the land and harvest timber. The Trust for Public Land is helping broker the deal by coordinating with an array of groups and working with Stimson on the easement’s terms. FWP will hold the easement and be responsible for monitoring and enforcing the terms.

In late January, the project received a huge boost from the U.S. Forest Service’s Forest Legacy Program, which awarded it $6.5 million derived from the Land and Water Conservation Fund. A preliminary estimate pegged the easement’s total price tag at $16 million though the final appraisal has yet to take place.

Stimson has agreed to pay 25 percent of the final price, which means that, based on the preliminary figure, $12 million must be secured to purchase the easement. With the federal grant, a total of $10.5 million has now been raised. The other $4 million came through the U.S. Fish and Wildlife Service’s habitat conservation plan land acquisition program.

Alan Wood, science program supervisor for FWP, said projects from across the country were submitted for consideration to the Forest Legacy Program. The Stimson proposal ranked fourth nationally, Wood said, qualifying it for the $6.5 million allocation.

“We were really pleased with that,” Wood said. “That was the biggest grant that we asked for from any of our funding sources.”

“If the appraisal holds up,” he added, “all we have left is $1.5 million.”

Montana Democratic Sen. Jon Tester praised the easement not only for its conservation implications but also for its potential effect on jobs, in both the outdoor recreation and timber industries. Tester’s office says outdoor recreation contributes $2.5 billion each year to Montana’s economy. The senator is co-chairman of the Congressional Sportsmen’s Caucus.

“This is a powerful investment in Montana’s outdoor heritage because it strengthens our access to public land and water in one of Montana’s best places to hunt and fish,” Tester said of the $6.5 million. “This grant will create jobs, it will boost Lincoln County’s economy, and improve the health of thousands of acres of forest land.”

Don Clark, president of the Libby Rod and Gun Club, said he isn’t a fan of conservation easements that lock up land privately, but he supports the Stimson project because of its commitment to public access. More people, often retirees, have been moving to the area and purchasing land in recent years, Clark said. He’s concerned about maintaining the region’s rural character.

“This helps keep things a little more small-townish,” Clark said of the easement. “We’re kind of a slow-paced, almost rural setting here and I like that. If you take this 28,000 acres and you sell it all, then you might get too much immigration and these people who move in want to make it like where they came from and that changes things for locals. I don’t want that.”

The proposal has received widespread support from the community, project coordinators say, mostly because everybody seems to agree on the importance of public access on undeveloped lands. Wood said locals have seen first-hand the consequences of forestland turning into subdivisions. When Plum Creek sold the 28,000 acres to Stimson in 2003, it also sold another chunk of land to a developer, who then subdivided it, Wood said.

“Those folks in Troy saw what happened there in terms of access,” he said.

Love said many residents of western Montana don’t realize that some land they’ve traditionally used for recreation is actually private because property owners like Plum Creek and Stimson have always allowed public access.

“I think once the local community realized the land wasn’t protected, they were in favor of the easement,” Love said of the Stimson project.

The Fisher and Thompson easements, which are a combined 142,000 acres, and the Swan easement – all held by FWP – offer precedent for the Stimson project. Unlike the 310,000-acre Montana Legacy Project, considered the largest land purchase for conservation purposes in U.S. history, these easements leave the property under the same ownership to be used for commercial purposes.

Public scoping meetings were held last fall and more meetings will likely be scheduled in the summer, Wood said, with a tentative timeline of closing the deal by fall. Based on the positive feedback so far, the project seems unlikely to meet much opposition.

“We’re all working together for the common good,” Stimson’s Dexter said. “We all want to be good neighbors.”

More on Collaboration in Idaho

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Not all groups buy into forest collaboration but Idaho got more funds
http://voices.idahostatesman.com/2012/02/07/rockybarker/not_all_groups_buy_forest_collaboration_idaho_got_more_funds

Submitted by Rocky Barker on Tue, 02/07/2012 – 1:37pm, updated on Tue, 02/07/2012 – 3:35pm

I got a few comments while I was away about my stories about forest collaboration.
The stories talked about how timber industry folks, environmentalists and others were moving into the next phase of collaboration . They are tackling tough questions like how much thinning and logging is good and where appropriate in the areas outside of roadless areas.
Montana environmental activist George Wuerthner pointed out that my stories didn’t include voices from environmentalists who opposed collaborative efforts like the Moscow-based Friends of the Clearwater and the Montana-based Alliance for the Wild Rockies. Fair comment.
They, like Wuerthner, are skeptical of collaborative efforts that they believe will make forests less resilient, not more.
“For myself, a healthy forest is one with a lot of dead trees–not the kind of forest that forest management brings about,” Wuerthner said. “So I suspect since my definition is different, my goals would be different from the industry and organizations quoted in the article.”
I don’t think he differs with the scientific beliefs of the Wilderness Society and the Idaho Conservation League. They like dead trees as bird habitat and for their effect on creating fish habitat when they fall into streams.
In fact the U.S. Forest Service now requires a certain amount of dead trees left in most timber sales and stewardship projects in the state.
And the groups have been pushing the positive benefits of fire perhaps even more effectively than the two groups he mentions. After all, it was the work of these and similar groups that led to the national forest roadless rules that protect more than 8 million acres in Idaho and more than 55 million nation-wide.
And it was their partners like Bill Higgins, the resource manager of the Idaho Forest Group in Grangeville who have embraced the Idaho Roadless Plan in their own sense of compromise aimed at ending the forest wars.
Friends of the Clearwater and the Alliance for the Wild Rockies remain skeptical about compromise. There also are folks on the other side of the spectrum who are just as leery of the environmentalist collaborators.
In the end the collaborators must take their views into consideration if they are to succeed. I acknowledge my bias toward those people who sit and talk together.
I also missed the story where the Obama Administration announced it would spend an additional $16 million on collaborative forest projects nationwide. They added two new Idaho projects to the Clearwater Collaborative projects approved in 2010 and continued in 2011.
They are: The $2.4 million Weiser-Little Salmon Headwaters Project on the Payette National Forest; and the $324,000 Kootenai Valley Resource Initiative on the Panhandle National Forest up north.

Recreation – Sheepdog Safety

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Akbash, a livestock protection dog used in the San Juan National Forest, has caused a stir among some trail users near Molas Pass. Here, Akbash belonging to Shane Nicolas herd sheep in the summer of 2010 in the Uncompahgre National Forest near Lake City.

In the interests of safety, I am posting this. I don’t know if this is the only part of the country where this is an issue. From the Durango Herald.

A simple solution to sheepdog encounters?
Education campaign planned to reduce high-country conflicts

Officials are betting that unnerving encounters with dogs guarding sheep in the high country could be reduced or eliminated through a public-education program to occur before flocks head for the hills in July.

Problem dogs in backcountry?

The plan emerged from a meeting this week involving the La Plata County Living With Wildlife Advisory Board and representatives of the U.S. Forest Service and Bureau of Land Management, the agencies that oversee livestock grazing on public land.

“I was impressed with the presentation of the agencies as well as the heartfelt and knowledgeable response of our board members,” Maureen Keilty, chairwoman of the wildlife board, said Wednesday. “I think we have a good focus and that our plan can be a model for public education.”

Among the elements of the informational plan:

A booth at the Durango Farmers Market where volunteers would explain the history of livestock grazing, the inherent nature and training of sheepdogs, and suggested trail etiquette on the part of hikers and mountain bikers.

A public forum at which stakeholders would give their point of view. The composition of the panel isn’t set but could include a rancher, a Forest Service or BLM representative, an advocate for wildlife and someone to speak for the trail-using public.

Informational signs at trailheads alerting visitors that dog-guarded sheep are grazing in the area. The signs were posted for the first time in 2011.

Maps at visitor centers, chambers of commerce and on BLM and Forest Service websites showing current locations of sheep, which are moved from one location to another.

Matt Janowiak, the Columbine District ranger for the Forest Service; Tom Rice, field manager at the BLM Tres Rios office in Dolores; and Ann Bond, Forest Service public information specialist in Durango, were at the meeting Tuesday.

Several run-ins with sheepdogs along the Colorado Trail around Silverton last summer prompted letters to newspapers recounting scary experiences, personal or retold, with guard dogs.

Several breeds of Turkish dogs, bred for centuries to protect sheep, are used by the six holders of sheep-grazing permits in the San Juan National Forest. The Akbash was the breed involved in the incidents.

Sheepdogs, including the Akbash, bond with their band by nature and don’t turn tail in the face of a threat. No one was bitten last summer.

Janowiak and Elena Cuevas, a member of the wildlife advisory board, who are familiar with the Akbash, said the breed isn’t vicious by nature. But sheepdogs have to be socialized as pups. Familiarity with people, other breeds of canines, farm animals and ranch equipment train them to distinguish a friend from a foe when guarding their flock.

Janowiak related how a rancher from Montrose who grazes sheep around Silverton removed and eventually put down an aggressive sheepdog. Since then, he’s used socialized dogs, and there’s been no problems, Janowiak said.

The BLM and Forest Service provide grazing allotments at several locations near Silverton, including Highland Mary Lakes, Whitehead Gulch, Velocity Basin and Grouse Gulch.

It was brought out at the Tuesday meeting that people who take dogs on federal land must have the pet under voice control or on a leash although there is no leash law.

The expanses where sheep graze in the national forest have no trails for motorized vehicles. But there are Forest Service or county roads that sheep cross from time to time.

Controlling predators with sheepdogs will resolve at least two issues of contention, Keilty said.

Dogs provide a nonlethal method to protect livestock in contrast to the U.S. Department of Agriculture APHIS Wildlife Service, which uses hunters to kill predators, Keilty said. Relying on dogs puts responsibility on ranchers, involves no taxpayer money and should find favor with animal lovers, she said.

APHIS stands for Animal and Plant Health Inspection Service.

The USDA service is expensive, costing county, state and federal funds, Keilty said. Ranchers also may be reimbursed for their losses.

The sheepdog solution also beats trapping and relocating predators, which rarely works, Keilty said.

Biomass plant to be online by 2013

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The F.H. Stoltze Land and Lumber mill in Columbia Falls will install a new biomass boiler.

Sent in by Smokey.
http://www.flatheadnewsgroup.com/hungryhorsenews/article_2683b66c-5267-11e1-8f28-0019bb2963f4.html

Biomass plant moves forward
The F.H. Stoltze Land and Lumber Co. will install a new biomass boiler at its mill in Columbia Falls that will generate power for Flathead Electric Cooperative Inc.

.Posted: Wednesday, February 8, 2012 8:08 am | Updated: 10:41 am, Wed Feb 8, 2012.

Biomass plant to be online by 2013 By RICHARD HANNERS Hungry Horse News Hagadone Corporation | 0 comments

Flathead Electric and Stoltze sign historic power agreement

In what is being described as a win-win deal for jobs, alternative energy and forest health, Flathead Electric Cooperative signed a power purchase agreement with F.H. Stoltze Land & Lumber Co. on Jan. 31 for biomass energy from the timber company’s mill.

In the 20-year agreement, which begins in 2013, the Co-op agreed to purchase up to 2.5 megawatts of power at 9 cents per kilowatt-hour. The Co-op will receive Renewable Energy Credits as a result of the purchase.

“Not only is this agreement great for the community, but it will provide a renewable energy source and also help manage the forests,” Stoltze vice president Chuck Roady said.

Talk about using wood waste from mills or biomass from forest thinning and logging projects to generate power has been going on since at least 2001, when the West Coast energy crisis shut down the Columbia Falls Aluminum Co. smelter.

More recently, as Stoltze moved forward with plans to replace the aging boiler system at its Half Moon mill – and to include a steam-powered electrical generator – public interest grew in the project. U.S. Secretary of Agriculture Tom Vilsack, for one, had expressed interest in a biomass generating plant in Montana, Roady said.

“This is a mutually beneficial arrangement, in which both parties have been negotiating in good faith for some time,” Co-op general manager Ken Sugden said. “Stoltze will be able to maintain and add local jobs, and Flathead Electric will be able to efficiently distribute electricity in our service area. Although a small component, this purchase agreement also adds to the Co-op’s renewable energy portfolio without financially overburdening our members.”

Flathead Electric Cooperative currently receives nearly all its power from the Bonneville Power Administration at about 3-4 cents a kilowatt-hour, which could be capped at about 169 megawatts. It also uses about 1.1 megawatts from a generator powered by landfill gas at the county landfill, and it will receive about a quarter megawatt of power from the city of Whitefish’s hydroplant when that project is completed.

According to Co-op assistant general manager Mark Johnson, the Co-op’s board set a criteria that the impact from purchasing Stoltze’s power at 9 cents a kilowatt-hour could not raise members’ retail rates by more than 1 percent. The 2.5 megawatt purchase amounts to about 1 percent of the Co-op’s total load, so there is little impact to costs.

Stoltze landed a $190,720 Woody Biomass Utilization grant last June to develop engineering, designs and permits for the project. In January, the Department of Environmental Quality announced Stoltze had requested a modification to its air quality permit so it could replace a bank of out-dated boilers rated at 60 million Btu/hour with a single boiler rated at 70 million Btu/hour.

Stoltze’s Half Moon lumber mill was constructed by the State Lumber Co. between 1918 and 1923. Five boilers were acquired from mills in Kila and Eureka – two Frost boilers, two Casey Hedge boilers and an Erie City Iron Works boiler.

“One of the boilers is dated 1905,” Roady said.

The boilers primarily burn bark but also consume sawdust, wood chips, planer shavings and hog fuel – ground up wood waste from forests and the log yard. The primary use of the steam is to heat kilns to dry finished lumber.

Stoltze initially looked at powering a 20-megawatt generator with a new boiler system, but by last June it had downsized its goals to about 2 megawatts – enough to handle the mill’s electrical load of 1.3 to 1.7 megawatts. An additional 2.5 megawatts will now be sold to the Co-op.

“The limitation is not biomass,” Roady said. “It’s the amount of biomass power the Co-op can handle.”

The new boiler will be built by Wellons Inc., of Vancouver, Wash., which has a long history building boilers and drying kilns for the timber industry – including Stoltze’s drying kilns, Roady said. Stoltze will borrow $20 million for the project, Roady said, which will start as soon as weather cooperates and take about 18 months to complete.

“We’ll tweak the system beginning in May or June, and put power on the grid by Oct. 1, 2013,” Roady said.

Land Letter on Planning Rule- TRCP Quotes

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Another organization heard from.. TRCP
Here is the link.

Conservationists over the past year have warned the draft rule gives forest supervisors too much discretion to decide which species should be monitored for stronger protections.

Tom Franklin, director of policy and government relations for the Theodore Roosevelt Conservation Partnership, said resource monitoring is key if the Forest Service hopes to successfully implement adaptive management, which is designed to give managers the flexibility to modify projects as resource conditions change on the ground.

“They’re giving tremendous authority to line officers,” he said last June. “It appears the use of best available science is kind of optional in a sense. The line officer will determine when it is appropriate to use it.”

While forest planners are required to use best available science in decisionmaking, such information must only be “taken into account and documented,” rather than given a lead role in planning, the draft rule stated.

Now, why would “best available science” be given the “lead role” in plans?
Whose science, what discipline? Are these folks familiar at all with the field of science and technology studies or the difference between normative and empirical observations? Doesn’t it seem a bit odd not to use the “best scientific information” in determining the ways that the best scientific information should be used in decision-making?

Court tosses Bush-era rule on fire-management consultations

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From E&E News:
I haven’t dug into this but sounds interesting. I just wonder about the first sentence “considering the matter for six years”. I also have to wonder about every rule being tied to its President. So the rule that will be done for objections based on the Approps bill will be an “Obama-era rule” ;?

Court tosses Bush-era rule on fire-management consultations

After considering the matter for six years, a federal court yesterday threw out a George W. Bush administration rule that streamlined the consultation required by the Endangered Species Act in the course of preparing fire management plans.

U.S. District Judge Gladys Kessler of the District of Columbia, who apologized in a footnote for taking so long, reversed her own 2006 ruling that had upheld the rule.

She took a second look at the request of environmental groups, including Defenders of Wildlife, which had challenged the 2003 rule in part because of the potential impact on the lynx, which is listed as a threatened species. The groups said Kessler had been too deferential to the Bush administration in upholding the rule.

In yesterday’s ruling, Kessler belatedly agreed with the challengers that the rule, which restricted consultation with U.S. Fish and Wildlife Service biologists, was “arbitrary and capricious” under the Administrative Procedure Act.

At issue was the Bush administration’s initial rationale for the streamlined rule, namely that it would reduce existing delays in enacting fire plans, thereby lessening the prospect of serious fires.

Kessler ruled that this purported justification is “not supported by the evidence in the record.”

More recently, the Fish and Wildlife Service has changed its position. Now it says the new rule merely has the possibility of speeding up the drafting of future fire plans, Kessler noted.

The government had claimed the case was now moot because it has changed its approach, but Kessler rejected that contention.

Eric Glitzenstein, a lawyer at Meyer Glitzenstein & Crystal who represented the environmental groups, said today that “the purported rationale for the rule never made any sense and needlessly placed listed species at risk.”

The Justice Department declined to comment.

Here’s a link to the decision.

SacBee on Pacific Rivers Appeal

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You know, I don’t like to unnecessarily partisanize disputes, but I wonder if this additional information provided by the reporter adds value to the story. Compare this story to the E&E news story here. In that story, the administration that appointed only one of the four involved judges is mentioned.

Federal appellate court rejects Forest Service plan for Sierra
http://www.sacbee.com/2012/02/05/4240045/federal-appellate-court-rejects.html

By Denny Walsh
[email protected]
Published: Sunday, Feb. 5, 2012 – 12:00 am | Page 1B

A federal appellate court has struck down as unlawful a 2004 management plan for Sierra Nevada national forests formulated by George W. Bush’s administration, saying it lacks a required analysis of how fish will fare under the plan.
A split three-judge panel of the 9th U.S. Circuit Court of Appeals held the Bush plan up next to a plan put in place in the dying days of Bill Clinton’s administration, pointing out that the earlier plan includes an insightful and viable look at how fish will be affected by its provisions.
The Bush administration took office in January 2001 and immediately began work on its revised plan.
Friday’s circuit opinion reverses U.S. District Judge Morrison C. England Jr. of Sacramento, who sided with the U.S. Forest Service in a 2008 ruling in which he rejected a challenge by the Pacific Rivers Council to the 2004 management plan’s lack of impact analysis regarding fish. The council, an advocacy group that champions aquatic life, contends the 2004 plan is inconsistent with the National Environmental Protection Act and the Administrative Procedure Act.
The panel agreed with the council on fish, but found that the 2004 analysis of effects on amphibians, which the council had also challenged, satisfied the requirements of the acts.
Environmental advocates have challenged a number of aspects of the 2004 plan revision in a series of lawsuits before England, who has consistently ruled in favor of the Forest Service.
The 11 national forests of the Sierra Nevada are home to at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded. “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra,” the study declared.
In 2001, the Forest Service issued a final environmental impact statement (EIS) recommending amendments to the Sierra Nevada Forest Plan that were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. The Clinton administration adopted a modified version of the statement, called the 2001 Framework.
Backed by a new EIS, the Bush administration’s 2004 Framework contains significant changes to the earlier management plan.
Forming the circuit panel majority are Judges Stephen Reinhardt, a liberal appointee of then-President Jimmy Carter, and William A. Fletcher, a liberal appointed by Clinton. Dissenting is Judge N. Randy Smith, a conservative appointed by Bush. England is also a conservative appointed by Bush.
Compared to its predecessor, the 2004 framework allows:
• The harvesting of substantially more timber and bigger trees on more acreage, some near streams and lakes.
• Substantially more construction of new, and reconstruction of existing, logging roads, some near streams.
• Fewer grazing restrictions, some near streams and lakes.
“The 2004 EIS contains no analysis of environmental consequences of these changes on individual fish species in the Sierra,” wrote Fletcher for the majority, contrasting that with more than 100 pages of such analysis in the 2001 EIS. The earlier EIS also included particular environmental risks for individual species of fish.
“There is no explanation in the 2004 EIS of why it was not reasonably possible to provide any analysis whatsoever of environmental consequence for individual species of fish, when an extensive analysis had been provided in the 2001 EIS,” Fletcher wrote. “The failure of the 2004 EIS to provide any such analysis is a failure to comply with the ‘hard look’ requirement of NEPA.”
By contrast, he wrote, “The 2004 EIS contains an extensive analysis of individual amphibians.”
In his dissent, Smith maintains that his colleagues are guilty of “two fundamental errors.”
First, he wrote, by ruling that the Forest Service must make an analysis “as soon as it was ‘reasonably possible’ to do so,” the majority “disregards our circuit’s long-standing precedent holding that an agency’s timing of analysis required by (NEPA) … is not arbitrary and capricious if it is performed before” a commitment to a specific forest project, such as logging or road construction.
“The majority instead creates an unclear rule based on ‘reasonable possibility’ that imposes additional procedures not required by NEPA on the Forest Service.”
Such a rule leaves the agency uncertain as to its legal obligations, invites judicial meddling in the agency’s decision making and invites even more litigation than is already aimed at the agency, Smith declared.
Second, he wrote, “the majority ignores the tiering … created by NEPA.” An EIS created for a framework “focuses on high-level policy decisions (and) requires less detailed analysis than a site-specific EIS.”
“Therefore, agencies are allowed to defer in-depth analysis until site specific projects have been identified.”
Courts “owe a high level of deference to the methodological choices of the agency,” Smith wrote.

Defenders of Wildife Positive on Planning Rule- Nevada News Service

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Conflicts in Nevada Forests?
Mike Clifford
Nevada News Service
http://www.lahontanvalleynews.com/article/20120206/NEWS/120209922/1087&ParentProfile=1045

LAS VEGAS – Endangered animals, outdoor recreation and mining could peacefully coexist in Nevada’s national forests under new management guidelines proposed by the Obama administration.

The first “forest planning rule” update in 30 years will require use of the best available science and hopefully resolve long-standing conflicts such as those between industry and environmentalists, according to Jeanne Higgins, supervisor of the Humboldt-Toiyabe National Forest, the largest in the lower 48 states.

“Specifically mining and grazing, recreational uses, how we provide habitat for wildlife and how we make sure that we’re providing clean water.”

The new planning rule eventually will apply to 155 national forests and grasslands in 42 states and Puerto Rico. The guidelines are expected to be finalized in about a month.

Peter Nelson, director of Defenders of Wildlife’s federal lands program, says the new planning rule will allow forest managers to focus on the recovery of damaged watersheds and endangered plant and animal species, while also providing for multiple uses which include recreation and logging. He’s optimistic the approach will work.

“The concept of restoration-based forestry is very appealing because it is able to provide multiple values at the same time, including the creation of wildlife habitat with traditional or innovative logging practices. So, that’s something that is doable.”

More than 300,000 public comments were received since the draft rule was released last year. Nelson says it’s a reflection of how Americans view the national forests.

“The national forest system, at almost 200 million acres, is really one of America’s most prized assets. And because it offers so much value to so many people on so many levels, that’s why people are interested in getting involved and fighting for these places. It’s a healthy thing.”

The Forest Service says the new guidelines will give individual forest managers more flexibility to respond to changing conditions, and should speed up the process of developing new forest-management plans.