Large-Scale NEPA and Specificity: Tennessee Creek Project Litigation

Note, this might not be the final map.

I’m pretty sure we’ve talked about these landscape NEPA documents before. They have been questioned for lack of site specificity for treatments. Here’s another one that’s been successful, with an endangered species involved.

It’s the Tennessee Creek Project on the PSICC National Forest. The project area is 16,450 acres, and activities are expected to occur over 10- 15 years. Actions are a mix of thinning, clearcutting (lodgepole) and prescribed burning. Here are the acres treated:

Regenerate lodgepole pine through mechanical means on 3,790 acres.
Thin 2,685 acres of mature lodgepole pine stands. Pre-commercial thin 345 acres of advanced regeneration of lodgepole pine (3,030 acres total would be thinned).
Improve the health of aspen stands through prescribed fire and/or mechanical means on 180 acres.
Utilize prescribed fire on 5,485 acres.

I think it will be interesting to compare this with other successful landscape projects. We could track two things about them, project area, and acres treated divided by years, in this case about 10K/10 years or a “1K a year project.” Due to the number of acres treated this wouldn’t fit into the restoration CE. It’s interesting to speculate if you were a NEPA practitioner and had that CE possible, would you reduce the number of acres to fit, and how much work would that save (knowing that you still wanted to do more acres), with perhaps another future CE? Or is the limiting factor the budget, and your District’s budget allows a certain number of acres treated per year, and then you would decide how many years the work approved in a restoration CE would last?

From a Colorado Springs Gazette story here:

But the plan, known as the Tennessee Creek Project, which targets more than 16,000 acres of the Pike and San Isabel National Forests, hit a snag a few months after its final approval. On April 23, WildEarth Guardians, a nonprofit environmental advocacy group, sued the Forest Service, claiming that the agency’s plan has miscalculated the harm that would be done to the habitat of the threatened Canada lynx.

The project also represents what could be a disturbing trend in Forest Service practice, where logging projects are approved without specific details about areas that will be logged
, said John Mellgren, an attorney with the Western Environmental Law Center that represents WildEarth Guardians.

“The real problem with the project is the Forest Service just drew a big circle on the map,” Mellgren said. “(They) are going to log some part of this circle, but won’t tell you where they are going to log. If they stayed out of those areas, we might not have a problem with the project right now.”

This quote raised some questions for me, because it seems to me that part of a landscape scale project would be to say what treatments would go where, not spatially, but say in terms of lynx habitat. Note: lynx was reintroduced to Colorado.

Sure enough, Judge Hartz did not agree with WEG, and also not on their idea that the project required an EIS. Note to Jon: SRLA figured prominently in the Judge’s discussion.

Here’s a link to his decision. With regard to “site-specific”

But Richardson did not hold that an agency’s EA or EIS always must specify the precise locations within a project area that will be affected. The problem in Richardson was simply that there had been no environmental assessment of the ultimate plan. The earlier assessment contemplated a significantly different project from what was later selected. That is hardly the case here. The EA analyzed what could happen whatever sites were eventually chosen for treatment by the Project, so long as the Project restrictions were satisfied. The Service’s analysis accounted for the uncertainty about treatment locations by evaluating the Project’s effects on lynx in a worst-case scenario in which all the mapped lynx habitat in the Project area is treated, and by including conservation measures to protect high-quality lynx habitat, such as not treating healthy spruce-fir stands or any stands with greater than 35% dense horizontal cover. Moreover, the Service had a valid reason for not identifying specific treatment sites in its EA: it intends to select treatment units based on changing on-the-ground conditions over the 10 to 15 years of the Project. NEPA leaves “substantial discretion to an agency to determine how best to gather and assess information” about a project’s environmental impacts. Biodiversity Conservation Alliance v. U.S. Forest Serv., 765 F.3d 1264, 1270 (10th Cir. 2014). The Service used that discretion reasonably, assessing the Project’s maximum possible effect on lynx habitat while also conserving agency resources and retaining flexibility to respond to changing conditions. See Utah Shared Access Alliance, 288 F.3d at 1213 (“By conducting an EA, an agency considers environmental concerns yet
reserves its resources for instances where a full EIS is appropriate.” (internal quotation marks omitted)). We note that the Service was not postponing the requisite environmental analysis until it picks the specific sites for treatment under the Project; rather, it was saying that such future analysis would be unnecessary because, in its expert opinion, whatever sites it ultimately chooses (within the constraints imposed by the
Project), there would not be a negative impact on the lynx.

14 thoughts on “Large-Scale NEPA and Specificity: Tennessee Creek Project Litigation”

  1. It is good to see information about large, landscape NEPA projects that have limited site specific review be discussed on this list.

    In the Sierra Nevada, we are confronted now with a proposal to do vegetation management (e.g., logging and prescribed burning) on 100,00 acres per year for 15 years (1.5 million acres total). The Stanislaus and Sierra National Forests are making this proposal. Combined with this vast area they intend to cover with one NEPA decision, they are imposing a timeline with scoping in August 2019 and a final decision in 2020. They are also contemplating forest plan amendments to accompany the decision.

    Right now this one is off the rails.

    Sue
    Sierra Forest Legacy

    Reply
    • Sue, thanks for the heads up. Two forests is a lot of acres, and I’ll go ahead and find out more about this one. I think one of the problems with large scale NEPA is that the idea is to do more, but if you have been doing CE’s and EA’s for years, you might already be doing quite a bit. The other strategic item is that if you have large scale NEPA done and get some $ you are ready to go. So there are strategic reasons forest may want to have these done in terms of flexibility. I have never seen one that large get done that quickly but I may well be missing something.

      Reply
    • Those Forests have always under-performed, even when given extra money to do more. 100,000 acres per year is just not possible in those places. The terrain and the fuels limit where “logging and prescribed burning” can occur. There is no way those Forests would light off stands of dead trees without some form of fuels modification.

      There’s also the limitations of personnel. Those Forests have minimal timber staffing, have very bleak prospects for experienced Temporary Employees and there is a 6 month window to get the fieldwork done before Temps go away. Training new people each and every year will also take significant time and investment. Additionally, there will need to be teams of ‘ologists’ to implement field surveys to the proper protocols. Where will they get qualified people on a Temporary Appointment?

      AND, how would such a plan get by the Sierra Nevada Plan, which has been in force for almost 20 years? It took GW Bush 4 entire years to restore the former diameter limits, through an amendment.

      This just sounds more like something the Chief, (or higher) ‘would like to see’. Or, maybe a Republican Representative named McClintock? *smirk*

      Reply
  2. This project is a continuation of methodical treatment of high-elevation, mature lodgepole (LP). BLM and Forest Service began such treatments (clearcuts) in the late ‘70’s, again in early 2000’s, and now continuing on. Box Creek (~2005) focused on areas south of Tennessee Creek, thinning and clearcutting LP. It has/ is very successful in implementation, mixing species in regeneration and responding very well to thinning, to the tune of a 19,000 acre Planning Area.

    Tennessee Creek is already in implantation, and is showing outstanding results!

    Reply
  3. Nobody should view the result of this case as a blanket judicial endorsement of landscape-scale NEPA. As I explained here, https://forestpolicypub.com/2017/07/31/tennessee-creek-project-in-colorado-successful-ea-for-large-project/, it worked out well in this case because the issue was limited to lynx, and the project was adhering to a scientifically-supported lynx conservation strategy that was included in the forest plan. Also, while the project did not specify exact locations, it did quantify the number of acres of different types of habitat relevant to impacts on lynx (as suggested by Sharon), and the analysis assumed that all of the lynx habitat (9,480 acres) would be treated. Finally, they obtained a concurrence from the Fish and Wildlife Service, relying on the lynx strategy, that this “worst-case” project was not likely to have adverse effects on lynx, which supported the Forest Service position that there would not be significant effects and no EIS was necessary.

    I’d like to specifically point out the last sentence of Sharon’s quote from the opinion: “We note that the Service was not postponing the requisite environmental analysis until it picks the specific sites for treatment under the Project; rather, it was saying that such future analysis would be unnecessary because, in its expert opinion, whatever sites it ultimately chooses (within the constraints imposed by the Project), there would not be a negative impact on the lynx.” I think this gets harder to do this as projects get larger and the issues get more complex and have less scientific consensus about effects. (If an EIS has been prepared, the issue would probably become whether the Forest Service has evaluated the worst case, or otherwise shown that locations don’t matter to effects.)

    The language Sharon quoted from this opinion distinguished the Richardson case because there the likely locations were changed without considering the effects. The Richardson opinion had also made the point that locations mattered: “the location of development greatly influences the likelihood and extent of habitat preservation.” In the WEG opinion, the court is making the point that by doing a worst-case analysis with respect to lynx, the effects evaluated can’t be exceeded.

    One thing that is not discussed is the scheduling of activities, which is also unknown. It could be important because concentrated activities in one lynx analysis unit at one time might have significant impacts. However, the lynx conservation strategy would force the scheduling to prohibit that result and the project must be consistent with that strategy. This constraint may not be present for other issues.

    The Forest Service may be tempted to flaunt this language: “the Service had a valid reason for not identifying specific treatment sites in its EA: it intends to select treatment units based on changing on-the-ground conditions over the 10 to 15 years of the Project. NEPA leaves ‘substantial discretion to an agency to determine how best to gather and assess information’ about a project’s environmental impacts… The Service used that discretion reasonably…” IN THIS CASE, because of the factors discussed above. Moreover, none of this does anything to change the continuing obligation under NEPA to consider new information or changed conditions over the 10-15 year time period, which may require additional NEPA analysis and disclosure.

    Reply
    • Jon, I was peripherally involved in the SRLA (mostly strong-arming individuals to review it) and reading some of the comments. At the end of the day, I believe the key decisions were made by the R2 Regional Forester based on some excellent work by government scientists/technical specialists/experts in wildlife with the Forest Service and FWS, an example of “how things are supposed to work”.

      (Note partisan-watchers, the decision was made in 2008 during Bush’s term). What is interesting to me is that you said “I think this gets harder to do this as projects get larger and the issues get more complex and have less scientific consensus about effects.” I would be that there isn’t really “scientific consensus” on effects (why would there be about predicting the future of a species that hadn’t been in Colorado for a while?) but less of an appetite of entities in R-2 for advocacy, either expressed by scientists or litigators, on this topic.

      Reply
      • I’m not sure I’m tracking your last sentence. The Lynx Conservation Assessment and Strategy was a “science project,” with all the lynx scientists agreeing about the effects of management on lynx habitat. Its recommendations were not followed to the letter by the FS decision-makers, but they were followed enough to give the FWS confidence in the long-term outcomes, which has led to their short-term support. This includes R1, and when lynx has been litigated there, the effects analysis has not been a problem for the FS. (It’s mostly been ESA procedures.)

        Reply
        • I meant “all scientists everywhere agreeing” not “all scientists on a specific team agreeing”. Which is an excellent point to bring out.

          Reply
          • This may have been closer to the former, since the “team” of agency biologists (FS/FWS/NPS and later state) interacted with the rest of the world of lynx researchers (esp. John Squires) regularly.

            Reply
  4. I have a 150 page NEPA document for a small fire salvage sale we did on the Willamette National Forest. It took them a year and 1/2 to complete. Of course by then no would buy the white woods and the smaller diameter DF wasn’t much better.
    Seems like the forests have been trying to figure out a way to stay out of the courts. Who hasn’t watched years of collaboration go down the drain when some environmental group decides to litigate, no matter what, if the project includes timber harvesting.
    I may be dreaming or just out of touch but it seems maybe, just maybe we will get some balance back in our forest management.
    Oh yeah, put fires out when they are small! Don’t burn up our children’s future.

    Reply

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