Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.
Flathead court decision
The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout. The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements. The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects. I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.
This article quotes the judge on the crux of the case regarding grizzly bears:
“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.
Additionally, the article continues:
Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.
The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.
Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.
A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.
This article quotes timber industry intervenors:
“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.
Colville new lawsuit
There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.
One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.” The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.
The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):
The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.
Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.
The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.
The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.
It’s great that they actually projected the amount of late forest structure. Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions. I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing). The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?
The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.
This is an important interpretation of what they think their forest plan requires. Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.
The CNF does not recognize old growth, lumping old growth with mature forests. This is fatal ecologically as existing old growth can be logged partially as long as some arbitrary canopy cover percent for the stand is meant. The same applies to their snag guidelines, they can remove firewood to the lower limits of the guidelines, adversely affecting many dead wood dependent species. So no undisturbed natural stands would be left and the logging would reduce the value of the stand to species such as pine marten and the extirpated fisher. Less foliage means less surface area for insects that songbirds can forage on. Disturbing existing stands removes carbon and like removal of needles, removal of the stem with its bark substrate means less foods for birds and other species. Time is important also, one cannot rush the onset of stem decay, time is needed for dissemination events of rare lichens to reach and possibly populate the stand. In addition, skid trails and associated logging are non natural disturbance events which are vastly different from natural ones. BTW the CNF has removed fisher from the sensitive species list. Past and current management practices are fragmenting old growth habitat and eliminated the fisher. We want it back. The CNF is preparing to log old growth cedar and moist mixed species stands in their “Trail” or Swxuytn logging EA.
Thanks. I guess that lumping is what I surmised from this in the issue paper (which is labeled “old growth” but talks about “late structure” and “old forest”): “For the Forest Plan Revision, forest-wide data on forest structure was derived from LiDAR which shows late structure (which could be considered “old growth”).” That’s different from most forests that define old growth based on scientific criteria like those in Green et al.
However, your interpretation appears to differ from theirs that “existing late structure would need to be maintained,” which should mean maintaining actual old growth conditions where they exist. Is this an issue on the Sanpoil project?
1) These lawsuits I think pretty much explain why forests may be hesitant to engage in plan revision.. reopening Pandora’s box, re-arguing many settled conflicts and with a bonus of litigation. What could be a better use of time? Certainly not taking care of visitors, improving their experiences, or doing fuel treatments, watershed improvements, and so on…
2) I think the idea of trying to replicate historic conditions is not the greatest idea for a Plan that is likely to last another 15-20 years. If we believe that climate change is going to foster larger and more dangerous fires, then each time you get large fires you would have to recalibrate your calculations and what? Do a plan amendment? In pursuit of turning back time?
I’ve been saying this for awhile. Millar and other scientists have been saying it.
Lance Olsen has some quotes in his comment here, like this one from an NWF paper ..” Certainly, many conventional forest restoration and management strategies will continue to be relevant and useful in an era of climate change. As some scientists suggest, it is important that we not “throw the baby out with the bathwater” (Prober and Dunlop 2011) or abandon fundamental principles of ecological restoration, such as focusing on ecosystem processes and functions (Hanberry et al. 2015).” Note- specific clumps of specific species of specific ages are not processes nor functions, as far as I know.
3). With all due respect to Judge Milloy, I don’t agree that it is arbitrary and capricious to dial back protections for a species that is increasing. Otherwise there is no reason, ever to change them.. except if the species is failing, to make them more restrictive. This is against the concept of adaptive management.. perhaps this is “one and you’re done” management.
“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.”
Perhaps I’m more quantitative (or more of a biologist) but if there were say 30 of a species and the species increases to 6,000, it seems to me that a case can be made for dialing back on protective efforts. It also seems to me that people have probably been studying this and there is also practitioner knowledge that could lead to… “we think we can dial back on this one a tad, and that one a lot,” and so on. Now maybe USFWS didn’t make that case in so many words. Or maybe they did.
This seems to be another one of those cases in which the Judge second-guesses the agency’s conclusions. Which is fine, but is another on our list of “when does Agency deference apply and is it consistent across cases such that those working in preparing documents can have some insight into how things will go?” Or is the interpretation of Agency deference in itself arbitrary and capricious across time, space, Circuits and judges?
This sounds like something that would be a great legal research project for environmental law students.
1) “re-arguing many settled conflicts” – The plan-level decisions were “settled” a quarter century ago. That can’t be an argument for ignoring “need for change” now. Unless Congress says something otherwise, NFMA revision requirements reflect their priorities for use of the agency’s time.
2) We may agree that historic conditions shouldn’t be the only consideration (if that’s what happened on the Colville, keeping in mind that this was not an explicit requirement of the 1982 planning regulations), but a court would be asking the question of whether the Forest Service was arbitrary in doing what they did. What you might be suggesting is a need to consider alternative desired conditions for vegetation during forest planning, something I don’t think I’ve seen. (Note that the 2012 Planning Rule requires explicit consideration of “structure, function, composition and connectivity.”)
3) You seem to be arguing that we should start using DDT again. I think the judge’s main point kinds of gets lost in this quote – the agencies did not properly evaluate the effects of the additional new road construction that the revised plan would allow, which would apparently be greater than the supposed 2011 baseline because of illegal use of new roads that would not be adequately closed by the plan’s new requirements. The judge is not “second-guessing the agency’s conclusions,” he is just saying they are not supported by the record.
Well.. as to your 1) I’d argue perhaps not so much. Since the last plan revision, there have been Wilderness bills passed, oil and gas leasing decisions, travel management, species amendments, fire management decisions, and so on. What’s really left? More RW/ another run at zoning, different standards and guidelines (which can be added to if needed at the project level). In my experience if something really needed to be changed, a forest would do an amendment. Which ultimately makes it more “loose-leaf notebooky” and less “let’s open up everything.”
If Congress really wanted plan revisions they would hold hearings and become quite serious about it. But they haven’t.. this means something, IMHO.
2. Not exactly, but for a national forest in Washington it would be interesting to compare a focus on resilience vs. HRV vs. integrity or whatever.
3. It sounds like the FS thought that the new roads would be closed, and the judge didn’t think so (not adequate). Without reading the document, that’s what it sounds like. So… agreeing with plaintiffs that the FS didn’t consider the right things…. is it second-guessing or not?
It is an interesting point though, there is agency deference for decisions but not for the analysis? Since NEPA is a procedural statute, and differing folks can have different views on whether something is sufficiently supported by the record… then the judge is saying the FS didn’t do it right. Didn’t consider the right things, didn’t address a particular study, didn’t use the preferred air quality model or whatever. Some judges look at this and say “well the agency has experts and they’re entitled to deference.” Some do not. That’s what I think would make a good study for law students.