NFS Litigation Weekly September 14, 2018

Forest Service summary:  Litigation Weekly sept 14

(New case.)  Cove Fire Salvage Project on the Modoc National Forest.


BLOGGER’S BONUS:  Since this one was so short (and since Sharon might not be forwarding anything to me for awhile), here’s some other recent courtroom news involving national forests.

“Four environmental groups are suing the U.S. Forest Service to stop a major logging project on the east shoulder of the Mount Hood National Forest near the White River in north-central Oregon… It is the largest timber sale in the Mount Hood National Forest in more than a decade, and would roughly double the annual forest-wide timber harvest.”

“U.S. District Judge Robert E. Blackburn dismissed the case last week following a settlement reached earlier this summer between the Bureau of Land Management and energy company SG Interests. The BLM agreed to pay the company $1.5 million for 18 oil and gas leases it cancelled in 2016 at the request of a coalition of governments, environmentalists, ranchers and others.”  I guess this closes the “gap,” discussed here.

“Nearly a dozen residents and businesses have filed a lawsuit against the Durango & Silverton Narrow Gauge Railroad, accusing it of starting the 416 Fire earlier this summer (on the San Juan National Forest).  The lawsuit was filed before the Forest Service has completed its own official investigation into the fire’s cause.”

“For over two decades, Oregon has regulated thermal pollution in rivers and streams using illegal standards. But at a hearing Tuesday, the federal and state governments said it will take another 12 years to come up with revised standards to protect threatened and endangered fish.”

10 thoughts on “NFS Litigation Weekly September 14, 2018”

  1. The Crystal Clear sale is in my neck of the woods. The EA says:

    “The desired future condition of the project areas is a multi-layer canopy with large diameter trees, well-developed understory, more than one age class, and snags and down woody debris, as well as canopy closure and stand species composition reflecting Condition Class 1.”

    The local green group, Bark, claims that “Almost 4,000 acres of mature and old growth forest is slated to be logged to “prevent uncharacteristic wildfire” even though there is no scientific support for logging large old trees to reduce fire severity;”

    Bark’s web site shows photos of large trees that they suggest would be cut, but the USFS aims to retain the largest trees. For example, in its description of managing for white-headed woodpeckers, the EA says, “The Landbird Conservation Strategy objectives include no net loss of suitable habitat and retention of all ponderosa pine trees and snags greater than 20 inches DBH. While some ponderosa pines larger than 20 inches DBH may be cut, they would be removed in areas where there are larger pines and habitat would be improved. No snags would be cut unless they pose a safety risk.”

    Large, intense fires have burned in similar stands to the south in recent years, resulting in large areas with 100% mortality. I prefer management of the sort the agency proposes rather than “letting nature take its course.”

  2. Crystal Clear is located 100% within critical habitat for the northern spotted owl. There is a small chance that fire will degrade owl habitat, and a small chance that logging will interact favorably with fire to moderate fire effects. On the other hand, there is a 100% chance that logging will remove and degrade owl habitat.

    To justify such fuel reduction logging in suitable owl habitat on ecological grounds requires several findings: (1) that wildfire is highly likely to occur at the site of the treatment, (2) that if fire does occur it is likely to be a severe stand-replacing event, and (3) that spotted owls are more likely to be harmed and imperiled by wildfire than by logging at a scale necessary to reduce fire hazard. Available evidence does not support any of these findings, which raises serious questions about the need for and efficacy of logging to reduce fuels in western Oregon and other forests lacking frequent fire return intervals.

    In spite of what we often hear, federal forests are not at imminent risk of destruction by wildfire. Fire return intervals remain relatively long, due to both natural factors and active fire suppression policies. Wildfire severity also remains moderate. Most wildfires are NOT stand replacing. Most fires are in fact low and moderate severity.

    The location, timing, and severity of future fire events cannot be predicted making it difficult to determine which forests will benefit from treatment – consequently fuel treatments must be extensive and many stands will be treated unnecessarily, thus incurring all the costs of fuel logging, but receiving none of the beneficial effects on fire behavior.

    Furthermore, logging for purposes of fuel reduction has impacts on owl and prey habitat that remain under-appreciated, especially the reduction of complex woody structure, and the long-term reduction in recruitment of large snags and dead wood. Fuel reduction logging also has complex effects on fire hazard with potential to increase fire hazard, especially when fuel reduction efforts involve removal of canopy trees.

    • So this, from the EA, isn’t good enough? Would you sanction ANY active management in the area?

      Northern Spotted Owls
      Some comments expressed concern about the impacts of the project on the Northern Spotted Owl and their critical habitat. For example, a commenter requested that the Forest Service align the Proposed Action with Recovery Actions 10 and 32 as outlined in the Revised Recovery Plan for the Northern Spotted Owl by removing units from consideration that include high-quality, suitable habitat (USFWS 2011).

      Recovery Action 10 states, “Conserve spotted owl sites and high value spotted owl habitat to provide additional demographic support to the spotted owl population” (USFWS 2011, p. III-44). The intent of this action is to protect, enhance, and develop habitat in the quantity and distribution necessary to provide for the long-term recovery of spotted owls. The Recovery Plan recommends that Federal land managers work with the US Fish and Wildlife Service to prioritize current and historical spotted owl nest sites for conservation and/or maintenance of existing levels of habitat. The Proposed Action was developed to maintain the highest quality habitat within spotted owl territories. Also, all potential core areas would be maintained above the 50 percent threshold for suitable habitat. Proposed treatments would be placed between patches of the highest quality habitat, which would reduce the likelihood of losing the remaining habitat from wildfire.

      Recovery Action 32 recommends land managers work with the US Fish and Wildlife Service to maintain and restore well-distributed, older and more structurally complex multi-layered conifer forests across the spotted owl’s range while allowing for other threats, such as fire and insects, to be addressed by restoration management actions. Recovery Action 32 states, “These high-quality spotted owl habitat stands are characterized as having large diameter trees, high amounts of canopy cover, and decadence components such as broken-topped live trees, mistletoe, cavities, large snags, and fallen trees” (USFWS 2011, p. III-67). The Proposed Action was developed in coordination with the US Fish and Wildlife Service with the goal of maintaining the most suitable habitat while reducing the threat of losing habitat from wildfires. For example, the Proposed Action that was shared with the public during the 30-day comment period did include treatment activities within known spotted owl habitat, as described in Recovery Action 32, located within the central and western portion of the planning area.

      During the comment period, one commenter, Bark, highlighted the need for re-assessing where potential spotted owl habitat could be located within the planning area, as described by Recovery Action 32. Upon several additional field visits and discussions with the US Fish and Wildlife Service, the Eastside Wildlife Biologist located acres that met the definition of spotted owl habitat for Recovery Action 32. Therefore, in response to public comment, as well as to better meet project objectives, the Proposed Action has been updated by removing approximately 605 acres from treatment. This modification to the Proposed Action is also described in Section 2.5. Since the Proposed Action has been updated to respond to public comment and better address the management direction outlined in the Recovery Plan for the spotted owl, it was determined that the concerns raised for the spotted owl have been appropriately incorporated into the Proposed Action.

      • So if the purpose of all of this was fuel reduction (and I thought perhaps some WUI was involved in this project as well), I find it interesting that (1) they didn’t identify that 605 acres of habitat to begin with and (2) that the project can still be effective without that 605 acres, which kind of makes me wonder whether the project was truly focused on fuel reduction to begin with…

  3. I might buy the explanation for Recovery Action 32, but I would question Recovery Action 10. It sounds like they are playing loose with that language. I suspect that the term “conserve” used by the FWS means “don’t mess with” these sites, and they admit they are messing with them. The FS likes to think that “conserve” means active management, but they do that everywhere, and “spotted owl sites and high value spotted owl habitat” were obviously singled out for something different from other spotted owl habitat. (It doesn’t say the FWS agreed with their approach to 10 like it did for 32.)

  4. Another article on this project:

    “They’re positioning this as a fuels-reduction project,” Brenna Bell, legal representation for Bark told The Post in a previous interview. “Mature forest is the most resilient.” Bell argues that “fire can only justify so much logging,” and that the Forest Service’s proposed 12,000-acre sale is well over what is appropriate. (The rest might have something to do with those higher timber targets?)

    In a prior interview, Casey Gatz, then Forest Service project leader on the restoration, said “We are maintaining as much of the owls’ habitat as possible.” (My question: wouldn’t it be possible to maintain all of the owls’ habitat by not logging any of it?)

      • Steve Wilent: “loss of old forest to wildfire”

        But wait, how can that be ??? Fire is such a hallowed thing. Many plants and animals (& Birds) evolved with fire.

        Steve Wilent: “and competition with rapidly encroaching barred owls.”

        Now wait a minute, wouldn’t that be a prime example of survival of the fittest ??? I distinctly remember Dr Ian Malcohm saying “No, hold on. This isn’t some species that was obliterated by deforestation, or the building of a dam. Spotted Owls had their shot, but Wildfire selected them for extinction.”

      • Right. So you have to determine which areas will cost the owls the most if you log them, and which areas are most likely to burn if you don’t log them. I hear the FWS saying that that there are areas that shouldn’t be logged and some of them are apparently being logged by this project. I do think that some kind of prioritization should have been done at the plan level so the argument would be about whether or not this is following a plan that adequately provides for spotted owl recovery.

      • Yes, and that loss of old forest to wildfire is what spurred the identification of relatively large Late Successional Reserves (compared to the several iterations of much smaller “reserves” before that) so that you could still maintain some level of old forest within them. And, that is why Risk Reduction work is allowed in Late Successional Reserves as well. And the lead for the NWFP will tell you that they accounted for fire-related habitat loss in how they designed LSRs. I don’t think it is necessary to protect all owl habitat from fire…and I think that Crystal Clear is more about WUI than it is about protecting owl habitat from fire (but I could be wrong about that…)


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