The LAVA Project: Site-Specific Public Involvement

This photo is from an article on UW researchers’ findings that elk avoid bug kill.https://www.gillettenewsrecord.com/news/wyoming/article_0342d35b-56ea-57b3-9690-92f5bd4c5f73.html
Many thanks to Ted Zukoski of the Center for Biological Diversity for alerting us to the finalizing of the Lava Project on the Medicine Bow National Forest in Wyoming. Since we’ve been having a discussion here on TSW about condition-based NEPA, I thought I’d explore the Response to Objections a bit. Ted also provided the WEG press release.

There are many interesting aspects to this project that don’t come out without some digging into the (naturally) voluminous documentation. I was particularly curious about the opportunities for public involvement on a site-specific proposal..

The Forest developed Appendix A based on public comment on the DEIS. Interestingly, there is a process involving the public in prioritizing areas, something that many cooperators have often called for. Especially in Bug World, there is so much that could possibly be done that working with the public to prioritize areas seems particularly important.

But I was also curious about the “individual site” public involvement process.

Individual Treatments (2 to 3 months)
Intent: Provide an opportunity for the public and cooperating agencies to provide detailed, site-specific feedback for individual treatment proposals identified within the Focus Areas. This phase is depicted in the “Individual Treatments” section of Figure 6.

Outcome: Refined individual treatment area boundaries, treatment proposal information, and maps based on internal Forest Service, public, and cooperating agency feedback.

Phase Outline
• Conduct a meeting to identify preliminary treatment proposals within the focus area and treatment opportunity area boundaries. Identify treatment constraints by:
o Reviewing the “Decision-making Triggers” table
(Attachment 1: LaVA Decision-Making Triggers (this table is 11 by 17)) to determine if treatment proposals are approaching yellow- or red-light triggers; incorporate adaptive action
options as appropriate;
o Assessing treatment feasibility factors, such as slope and sensitive soils; and
o Identifying potential treatment design features (Attachment 2: LaVA Project Design Features) and identifying any additional features, if necessary, to protect area resources (Forest Service
and Cooperating Agencies).
• Identify funding sources (Forest Service and Cooperating Agencies);
• Following the meeting, complete Output 1: LaVA Pre-treatment Checklists (Forest Service and Cooperating Agencies);
• Consolidate completed Output 1: Pre-treatment checklist information into a single document and upload to the Project Website for public feedback (Forest Service).
• Conduct public workshop (All)
• Synthesize public feedback information (Forest Service and Cooperating Agencies); and
• Incorporate feedback into treatment design, as appropriate (Forest Service and Cooperating
Agencies).

So there will be opportunities for public involvement, but not as an aspect of an additional NEPA process. As a person who recreates in the project area, it doesn’t make much difference to me as long as I get to comment. I’m interested what others think.

20 thoughts on “The LAVA Project: Site-Specific Public Involvement”

  1. Regarding the photo, which appears to show about 1/10th of an acre that Sharon selected to run with her blog post…we actually talked about that study before on this blog, back in 2014.

    Here are the comments that went with that 2014 blog post on this blog. Pretty interesting to read through these comments again. According to the Wyoming Game and Fish Department, in 2018, “a majority of elk herd units in the Laramie Region [which includes the Medicine Bow National Forest] are above population objectives and should provide hunters with excellent hunting opportunities.” They pretty much said the same exact thing last year.

    Gee, I wonder how elk living on the Medicine Bow National Forest will like the construction and bulldozing of 600 miles of “temporary” logging roads that are part of the LaVa project to facilitate about 250,000 acres of various forms of heavy-handed industrial logging?

    Before getting to those 2014 comments below, one more word about the photo. If the photo is supposed to show beetle killed trees, why is the entire top layer of trees in the photo comprised of smaller trees with green needles?

    Brandon

    Seems like a rather narrow way of asking questions about the ecological effects of beetle infestations. The movement of elk (and the inconvenience of their human hunters) is one perspective, but there’s a lot living there.

    What’s eating those trees? They’re likely manna for woodpeckers and other insect-eaters; what sort of communities do you get at die-off edges, or during succession’s blooms? How’s that work out for songbirds and bears? Those are all questions to study, too.

    (And what does “proper regeneration of the forest” even mean; maybe it’s something that can be managed perfectly well by the plants and animals living there?)

    2ndLaw

    I like what Brandon said. I would also ask “What are the species that might benefit from the temporary reduction of herbivores and/or the temporary reduction of hunters?”

    Forests are dynamic. The beetles cause change, and change is neither good nor bad, it is simply a part of the system that has waxed and waned for millennia.

    Larry Harrell Fotoware

    Of course, it is all too easy to leave out all the impacts of “whatever happens”, on us humans. Of course, we COULD pretend that those impacts are benign and that humans should embrace such “change” but, I don’t think that rural residents will buy into the rhetoric.

    Brandon

    I wouldn’t argue for ignoring impacts on us, but it’s also too easy to think those are the only impacts.

    If (to take a total hypothetical) there was something about dead tree stands that led to higher rates of disease in nearby communities, that’s hugely important. But if the impact is, “I enjoy killing elk, and it’s hard carrying their bodies over fallen trees”? Maybe that’s important too, but it’s not something to equate with the existential health of a forest.

    Matthew Koehler

    Wow, if the Wyoming Game and Fish biologist is worried about too many obstacles (dead trees, branches….maybe even rocks or cliffs?) for hunters, maybe Wyoming Game and Fish should just start selling cut-n-wrapped elk, instead of elk “hunting” tags. I mean, they already have numerous elk feed lots around Jackson, which helps lead to unethical behavior such as this.

    I’ve hunted elk for 10 years now…and have gotten 10 elk during that time. All the elk I shot were on public lands and came from “unhealthy forests.” This year I shot the lead cow in small herd while resting my rifle in a perfect crotch of a dead whitebark pine at about 9,000 feet near Yellowstone NP. Based on many days in the field chasing elk, these very smart creatures sure seem to know the landscape well and have no problem at all eluding hunters who aren’t willing to work for it, and perhaps go a little deeper, and hunt a little harder, than the next guy.

    Elk seem to have no problem walking through forests with recent beetle kill, wildfire or downed logs. In fact, seems to me that elk are smart enough to prefer places like this to bed down during the day because they know that predators – whether human hunters or wolves – will either completely avoid these areas, or have more trouble than the elk do moving thick forests or forests with a lot of blow down, etc.

    To me it’s laughable that we’d even consider that we need to do something (oh, let me guess, it will involve logging) to make it easier for hunters to move through the woods so they can shot wild elk and game. Our elk camps over the years have had their shares of successes and failures, struggles and disappointments, but that’s all part of what makes elk hunting on public lands in places like Montana (and I assume Wyoming) so bad-ass!

    Fact is, the most successful public lands hunters know where to find elk…and that’s not in the middle of a field grazing during broad daylight. Successful elk hunters know that the steep and deep north-facing slopes are where elk bed down during the day and if you can work hard and sneak quietly through these areas, you’ll see, smell or hear elk more times than not.

    Who knows what types of hunters volunteered to have their path traced by GPS. I know I wouldn’t, but then again I don’t carry a GPS, range-finder or even binoculars. I have a feeling the Wyoming Game & Fish will find out that their GPS hunters generally don’t go into places that are difficult to walk through, but that elk and deer generally do.

    Reply
    • Wow, Matthew, that was the first photo that came up when I searched. Interestingly I couldn’t find what I was looking for, an aerial photo or video that really gives people the perspective of bug kill there. I’ll ask around.

      Reply
      • Well, wow Sharon. It’s the photo you used…and you also linked back to that elk study. So, I felt it would be great for everyone to see what blog participants talked about related specifically to that elk study back in 2014. Also, if we’ve going to make this about elk and bark beetles, I felt like it would be good to share what the Wyoming Game and Fish Department said about elk in that part of Wyoming. Again, if the photo you selected is supposed to show beetle killed trees, why is the entire top layer of trees in the photo comprised of smaller trees with green needles?

        Reply
        • I had to link back to the elk study as that’s where I got the photo from. Still working on getting better photos. I did ask the question “would you care whether public involvement on a site was within later NEPA or not?” I also wonder what you mean by “industrial logging” exactly. Is that a prescription? Is any tree cutting not “industrial logging”?

          Reply
        • Well, wow, Matthew, can you be any more of a patronizing white man? (Not surprising; I find myself being ‘mansplained’ all the time in this field. Whatever. Entitled men gonna be entitled.)

          “Again, if the photo you selected is supposed to show beetle killed trees, why is the entire top layer of trees in the photo comprised of smaller trees with green needles?”

          Trees, especially lodgepole, are incredibly resilient and can retain green needles for 5-10+ years after being killed by bark beetles. In unthinned stands they can remain standing for up to 15 years. These were most likely weakened and blown over in a windstorm before reaching the red needle stage.

          Reply
          • Um, not sure what my being white has to do with my perception of a photo, but hate to break it you….You haven’t shared any information here that I didn’t already know. Also, many of the trees in that photo are not even lodgepole. But whatever. Thanks for the comment.

            Reply
          • I reached out to Dr. Diana Six (one of the world’s leading bark beetle scientists/reachers) and shared the photo above and this blog post. Here’s what Dr. Six had to say.

            Hi Matt – Looking at this photo – this is clearly windthrow of live trees NOT beetle killed trees. Beetle killed trees turn red within about 9 months. NEVER longer than 12. To say it can take years shown complete lack of knowledge of beetles and trees. This project sounds insane. Large clearcuts and shelterwood cuts (which are pretty much clear cuts) would be devastating – remove any resilience that forest might have had and all possibility of any adaptation. I cant even imaging a market for all this wood.

            Diana L. Six, Ph.D., FRES
            Professor of Forest Entomology/Pathology
            WA Franke College of Forestry and Conservation
            Dept. Ecosystem and Conservation Sciences
            The University of Montana

            Reply
            • Matthew, I hate to keep repeating this but THE PHOTO was only one I picked from the web when I was looking for a photo to illustrate the story. I have called the Medicine Bow and the State Forestry forest health office for different photos, but so far have not gotten anything. So I’m not going to engage in what that photo shows or doesn’t show.

              I’m surprised that Diana would say something “sounds insane” without actually reading the EIS. As for me, I’d be hesitant to think I know more about the project than all the disciplines that worked on it- even economic.. But I guess I’m just an old person from the days when observing disciplinary boundaries in the sciences was commonplace.

              Here are some of the other disciplines involved at :https://www.fs.usda.gov/project/?project=51255

              August 2020 Final Specialist Reports
              08-13-2020
              01_2020July_Specialists_Reports_Cumulative_Effects (PDF 141kb)

              08-13-2020
              2018Dec19_LaVA_Scenery_Report_508c (PDF 936kb)

              08-13-2020
              2019Feb02_LaVA_SpecialUses_Report_508c (PDF 9995kb)

              08-13-2020
              2019Feb08_LaVA_Range_Report_508c (PDF 364kb)

              08-13-2020
              2019Feb13_LaVA_Hydrology_Report_508c (PDF 1306kb)

              08-13-2020
              2019Feb13_LaVA_PlantSpecies_BE_508c (PDF 1109kb)

              08-13-2020
              2019Mar04_LaVA_Hydro_SupplementalInfo_508c (PDF 1411kb)

              08-13-2020
              2019Mar04_LaVA_WaterMetrics_508c (PDF 550kb)

              08-13-2020
              2019Mar25_LaVA_AirQualClimChangeReport_508c (PDF 663kb)

              08-13-2020
              2019Oct_LaVA_Addendum_To_Silviculture_508c (PDF 125kb)

              08-13-2020
              2019Oct_LaVA_Supplemented_SocioEcon_Report_508c (PDF 545kb)

              08-13-2020
              2020April_LaVA_InvasivePlantsReport_508c (PDF 294kb)

              08-13-2020
              2020July_LaVA_Aquatics_Report_508c (PDF 2299kb)

              08-13-2020
              2020July_LaVA_Heritage_Report_508c (PDF 425kb)

              08-13-2020
              2020July_LaVA_Recreation_Report_508c (PDF 553kb)

              08-13-2020
              2020July_LaVA_RoadlessArea_Report_508c (PDF 1624kb)

              08-13-2020
              2020July_LaVA_Silviculture_Report_508c (PDF 2370kb)

              08-13-2020
              2020July_LaVA_Soils_Report_508c (PDF 841kb)

              08-13-2020
              2020July_LaVA_Transportation_Report_508c (PDF 510kb)

              08-13-2020
              2020July_LaVA_Wildfire_Fuels_Report_508c (PDF 1362kb)

              08-13-2020
              2020July_LaVA_Wildlife_BA_508c (PDF 3244kb)

              08-13-2020
              2020July_LaVA_Wildlife_BE_MIS_SoLC_508c (PDF 2101kb)

              08-13-2020
              2020Mar27_LaVA_BarrettCrStreamHealth_SiteSpecAnalysis (PDF 1762kb)

              April 2020 Specialist Reports
              04-09-2020
              2019Apr_LaVA_FINAL_AquaticsReport_508c (PDF 2463kb)

              04-09-2020
              2019Apr_LaVA_Wildfire_Fuels_FEIS_508c (PDF 2159kb)

              04-09-2020
              2019Feb02_LaVA_Final_SpecialUsesReport_508c (PDF 10887kb)

              04-09-2020
              2020Feb18_LaVA_SoilsReport_ FinalEIS_508c (PDF 700kb)

              04-09-2020
              2019Oct_LaVA_Final_SocioeconomicsReport_508c (PDF 626kb)

              04-09-2020
              2019Mar27_LaVA_Final_Silviculture_508c (PDF 4727kb)

              04-09-2020
              2019Mar04_LaVA_HydroSupplementalInfo_508c (PDF 2056kb)

              04-09-2020
              2019Feb13_LaVA_HydroReportFEIS_508c (PDF 1748kb)

              04-09-2020
              2019Mar04_LaVA_WaterMetricsFEIS_508c (PDF 554kb)

              04-09-2020
              2019Feb08_LaVA_Final_RangeSpecialistReport_508c (PDF 427kb)

              04-09-2020
              2019Feb13_LaVA_Final_BE_PlantSpecies_FEIS_508c (PDF 1256kb)

              04-09-2020
              2019Feb13_LaVA_Final_RecreationSpecialistReport_508c (PDF 646kb)

              04-09-2020
              2019Mar25_LaVA_Final_AirQualityClimateChange_508c (PDF 700kb)

              04-09-2020
              2019Oct_LaVA_FEIS_Addendum_to_Silviculture_508c (PDF 93kb)

              04-09-2020
              2020Feb20_LAVA_Wildlife_BA_508c (PDF 8361kb)

              04-17-2020
              2020Mar27_LaVA_BarrettCrStreamHealth_SiteSpecAnalysis (PDF 1762kb)

              04-20-2020
              2019Dec20_LaVA_FWS_ConcurrenceLetter (PDF 2310kb)

              04-20-2020
              2020Mar_LaVA_InventoriedRoadlessAreaReport_508c (PDF 3487kb)

              04-20-2020
              2020April_LaVA_Final_MIS_BE_SoLC_Wild_508c (PDF 3140kb)

              04-22-2020
              2018Dec19_LaVA_FInal_Scenery_Specialist_Report_508c (PDF 1160kb)

              05-01-2020
              2020Apr_LaVA_Final_InvasivePlantsReport_508c (PDF 258kb)

              05-07-2020
              2020May_LaVA_Final_Transportation_Report_508c (PDF 514kb)

              05-08-2020
              2018Apr27_LaVAEIS_HeritageSpecialistRpt_508c (PDF 322kb)

              Reply
  2. Sharon:

    A key difference between public comment during the NEPA process and comment after that process has closed is accountability. As you know, NEPA requires agencies to take a hard look at environmental impacts, to analyze all reasonable alternatives, and to respond to public comments and scientific studies and experts that contradict agency conclusions. If the Forest Service fails to uphold these legal duties, the public can hold their government accountable in court.

    Under the LaVA approach, the public can still say something about site-specific projects, but the Forest Service needn’t listen because there is no risk of being held accountable. It’s true that there are many in the Forest Service who will listen, respond, and even modify agency actions in light of public input. It’s also true that even when the agency is legally required to respond to comments, address contrary science, and consider alternatives, it has on many occasions failed to do so, and been reversed by the courts. Without the opportunity to hold the agency accountable, some in the public are likely to find post-NEPA engagement opportunities hollow.

    Further, NEPA is a “look before you leap” statute. Here, the agency has essentially said it will figure out the details later, things like the location of up to 600 miles of road. Condition-based management seems to turn that notion on its head, giving the agency permission before the impacts are known.

    Reply
    • Ted, thanks for responding. I still think that you can hold the FS accountable in court. They have a list of what and how they will do things, in what (broad) areas, pretty much (IMHO) down to the gnat’s eyebrow with even the processes for involvement exhaustively described in the MFEIS. If they skip a step, or do something different that what they said, you can still take them to court.

      The Forest Service need never listen to to what the public says, CE, EA, EIS or rulemaking. Usually in my experience, members of the public disagree, so it’s generally hard for the FS not to pick something that some of “the public” wants. Most of us (without the legal knowledge or funding) can’t take the FS to court anyway, so many folks’ ability to hold the FS accountable via that method doesn’t exist. What’s interesting is that many collaborative groups have found problems with FS implementation, so there is also the issue of post-decisional accountability, and there are structures we could imagine to improve accountability outside the legal system that would be open to all groups regardless of financial wherewithal.

      Like I’ve said before, I participated in some conversations with folks from CEQ on a similar condition-based management project, and they thought it was fine from the NEPA standpoint, in fact they were encouraging the approach. I think that’s important because reasonable, knowledgeable attorneys apparently can disagree on whether this approach is OK vis a vis the NEPA statute. I think the Judge’s argument about lynx in the Tennessee Creek case was something like “they analyzed the worst case scenario of impacts, so the impacts have been analyzed- even if the FS actually does less than the amount analyzed.”

      On the other hand, I’ve been on the record as thinking it only makes sense to analyze effects when the agency has a site-specific proposal- and have questioned the utility of Forest Plan EIS’s (or at least the analysis of “might-coulds” in them, for that very reason.)

      Reply
  3. Why would the Forest Service create a process for public involvement that doesn’t comply with NEPA? The answer to that is probably why they shouldn’t do this. Regardless, the legal question for each of these future decisions is whether they will have complied with NEPA. (And I find it interesting that there is no mention of the forest plan or the need to be consistent with it.)

    Reply
    • Jon.. it would comply with NEPA, as the NEPA obligation would have been met via the decision documented in the EIS. I think Ted’s got it, that it’s about using lawsuits as an accountability mechanism. Which obviously privileges the viewpoints of some with access to the legal system over that of others. If you search in the MFEIS, I’m sure you will find many mentions of the forest plan. Lawsuits seem like an excessively adversarial, non-transparent and otherwise suboptimal way of going about this, but that’s just my perspective.

      Reply
      • “It would comply with NEPA.” Well, no, that’s precisely the legal question that will have to be answered for each project that has no further NEPA (regardless of the public involvement) – was the NEPA obligation met via the decision documented (eventually long ago) in the EIS). I actually think it’s kind of stupid for the FS to make a decision now that it won’t do any more NEPA later. It would be harder to sue them on the current decision if they just left that open for now. (I guess I could give them credit for being honest, but they really don’t know what things will look like a decade from now.)

        That’s an interesting point about post-decisional accountability because condition-based decisions shift a lot more of the accountability to that part of the process, which puts a much greater burden on the public to monitor implementation. So yes, reduced accountability is probably an agency goal here.

        At least one court has already overruled the CEQ minions, or maybe the Tongass didn’t do it the way they were thinking. I explained the many unique features of the Tennessee Creek case in my comments here (making it the exception rather than the rule): https://forestpolicypub.com/2019/07/18/large-scale-nepa-and-specificity-tennessee-creek-project-litigation/

        Reply
  4. The forest supervisor provides a smoking gun for future project plaintiffs in this article:
    https://www.wyomingbusinessreport.com/industry_news/sports_and_outdoors/unique-15-year-plan-approved-for-medicine-bow-national-forest-management/article_01b77b8b-452a-5c05-8a23-d29deb76c8a0.html

    “It gives flexibility because it is a landscape-scale project intended to be implemented over 15 years, so conditions on the ground could change. We could have a major wildfire come through and significantly change what needs to happen on those particular acres.”

    These are the kinds of changes that require a future NEPA process to determine if effects have changed. I guess the Forest Service could argue that the original effects were so vague so as to include anything that might happen in the future. Then the problem would be that the original analysis was inadequate to support site-specific decisions. But the FS is good at playing shell games between plans and projects to hide the effects (“too site-specific” to analyze at the plan level, but “outside the scope” of project decisions).

    Reply
  5. Jon, wouldn’t your argument “need a new NEPA process to determine if effects have changed” also apply to plan analysis after a big fire? And there’s lots of fires, so lots of competition for reanalyzing plans.

    I can be with you on “just in time” NEPA being the best because everything changes- all the time-, but then it doesn’t seem that plan EIS’s of hypothetical projects have much value IMHO.

    Can you give examples of projects and plans where this “shell game” has occurred?

    Reply
  6. It’s been too long away to remember specific examples, but I think you could find the phrase “outside the scope” in just about any project’s response to comments or objections. Maybe someone who got that response has tried to follow through in the planning process, but sometimes the FS strategy works to just make the issue go away (since planning is so infrequent).

    The Supreme Court held in Norton v. Southern Utah Wilderness Alliance (a 2004 BLM plan case that is viewed as applicable to the Forest Service) that NEPA new information requirements apply differently to plans than to projects: although the “[a]pproval of a [land use plan]” is a “major Federal action” requiring an EIS, that action is completed when the plan is approved. The land use plan is the “proposed action” contemplated by the regulation. There is no ongoing “major Federal action” that could require supplementation (though BLM is required to perform additional NEPA analyses if a plan is amended or revised).” (Citations omitted.)

    Reply
    • With all due respect to the Supreme Court, I don’t think that that really makes sense. I think they have been pragmatic in that on day 1 of a plan conditions change so it would be a never-ending court case if someone wanted to get rid of a plan. If a plan has environmental impacts (I don’t think it does, nor is that my interpretation of Ohio Forestry) then it needs an EIS and it needs to be supplemented when changes occur.

      If I were the Court, I’d pick a lane about plans’ impacts and stay in it.

      Reply
      • The Ohio Forestry decision doesn’t address the broad question of whether NEPA applies to forest plans. Its ripeness analysis just says that, “the provisions of the Plan that the Sierra Club challenges (not designating lands unsuitable for timber production for economic reasons) do not create adverse effects of a strictly legal kind.” While the Supreme Court may not have definitively answered the question of whether forest plans have environmental impacts, I think the courts as a whole have done so, and the government seems to have conceded this point, including in Ohio Forestry, where the court actually said (in dicta) that certain other plan decisions would be ripe for NFMA and/or NEPA claims, citing examples provided by the government attorneys.

        Reply

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