have already fallen and are adding to the surface fuels that can burn at high intensity and kill the sequoia roots. This is
another example of a Giant Sequoia Grove with no recent fire history. Indian Basin Grove is proposed for emergency fuels treatment.
A journalist contacted me and asked about the Region 5 Sequoia Emergency Response letter. This emergency uses 36 CFR 220.4.
(b) Emergency responses. When the responsible official determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and any required documentation in accordance with the provisions in §§ 220.5, 220.6, and 220.7 of this part, then the following provisions apply.
(1) The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources. When taking such actions, the responsible official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical.
(2) If the responsible official proposes emergency actions other than those actions described in paragraph (b)(1) of this section, and such actions are not likely to have significant environmental impacts, the responsible official shall document that determination in an EA and FONSI prepared in accord with these regulations. If the responsible official finds that the nature and scope of proposed emergency actions are such that they must be undertaken prior to preparing any NEPA analysis and documentation associated with a CE or an EA and FONSI, the responsible official shall consult with the Washington Office about alternative arrangements for NEPA compliance. The Chief or Associate Chief of the Forest Service may grant emergency alternative arrangements under NEPA for environmental assessments, findings of no significant impact and categorical exclusions (FSM 1950.41a). Consultation with the Washington Office shall be coordinated through the appropriate regional office.
(3) If the responsible official proposes emergency actions other than those actions described in paragraph (b)(1) of this section and such actions are likely to have significant environmental impacts, then the responsible official shall consult with CEQ, through the appropriate regional office and the Washington Office, about alternative arrangements in accordance with CEQ regulations at 40 CFR 1506.11 as soon as possible.
Here’s a link to a CEQ guidance letter from 2020. I guess I never really got in my head the “immediate threats to valuable natural or cultural resources” angle in addition to “public health or safety”. Seems like Sequoias certainly fill the bill.
Specifically the reporter asked:
1) is there a way to find/track ongoing litigation and results on each forest?
2) Is there anyone who knows the ins and outs of using this legal framework (knowledgeable party without direct interests)
My questions are:
4) (I asked this in the Hazard Tree post, but we can discuss here) how often has this Chief’s authority been used and for what kind of projects?
5) can the use of these different Emergency Responses (Chief or CEQ) be litigated? If so, what is the history on that?
Anyway, here are links to the Sequoia Emergency Response approval letter.. DECISION MEMORANDUM_FOR THE CHIEF_R5_EmergencyResponse_GiantSequoia and below are the recommendations. Photos and more explanation and specifics in this Enclosure_GiantSequoia_EmergencyResponse_withAppendices_July2022 (1)
Approve the proposed emergency response for NEPA compliance under 36 CFR 220.4(b)(2) with associated conditions so that the Sequoia and Sierra National Forests can immediately
implement fuels reduction treatments within 12 Giant Sequoia groves.Proposed Emergency Response:
1. Grant authorization to begin the fuels reduction treatments on approximately 13,377 acres (displayed in attached maps) prior to completion of the documentation of the Categorical
Exclusions (four) and Environmental Assessments and FONSIs (three).2. For the four Categorical Exclusions, exclude the requirement at 36 CFR 220.6(e) to document a decision to proceed with an action in a decision memo for certain Categorical Exclusions.
3. For the three Environmental Assessments and FONSIs, exclude the requirement at 36 CFR 220.7(c) to document a decision to proceed with an action in a Decision Notice if an EA and FONSI have been prepared.
Associated Conditions:
4. Ensure compliance with other laws, such as Endangered Species Act, National Historic Preservation Act, and Clean Water Act are in place before implementation of the fuels treatments.
5. Ensure all required consultations and permitting have been completed before implementation of the emergency fuels treatments. Emergency provisions may be employed where necessary, such as emergency consultation under ESA.
6. Stakeholders will be notified of the approved emergency response.
7. For those projects which have not initiated public or tribal involvement, initiate public scoping and tribal engagement within 45 days of approved emergency response actions. Continue engagement with the Giant Sequoia Working Group and Giant Sequoia Lands Coalition.
8. Monitor the effects of the actions subject to emergency response. Reconsult with my office through the Director of Ecosystem Management Coordination if monitoring reveals effects outside of those disclosed in the ongoing environmental analysis.
9. The intent is to complete the Emergency Response for Emergency Fuels Treatments by the end of 2023, however emergency fuels treatments may occur through 2024. The Pacific Southwest Region will provide regular implementation progress updates. An annual review will be conducted to re-evaluate the need for the emergency response.
10. All other proposed actions in the EAs and CEs which are not part of this
Emergency use is spelled out in the NEPA regs you cite and in 2020 CEQ issued guidance on its use. https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf This CEQ guidance is still current and most agencies have their own guidance on emergency use. See e.g. Interior, BLM, NPS. It has been rarely litigated. There was an unpublished case in 2018 (not precedent) over a wildfire use in a National Forest in Eastern WA. See, Forest Service Employees for Environmental Ethics v. USFS, 726 Appx. 605 (9th Cir June 8, 2018).
Thanks Rebecca! Perhaps Andy will give us more history on the FSEEE case.
This comment letter from Sequoia Forestkeeper references a couple of potentially relevant cases at pdf pp 4-5:
http://www.sequoiaforestkeeper.org/pdfs/comment_letters/Logging/20211115_SFK_WWP_KKSC_R5_postdisturbance_Hazardous_tree_mgmt.pdf
Courts (or at least, the two cited in the letter) have examined the degree to which an “emergency” project is addressing hazards that are imminent, as opposed to those more remote in time or space. But these courts do not seem to have specifically addressed the language of 36 cfr 220.4(b).
Rich, but if fire to Sequoia risks are really imminent, AKA encroaching wildfire, suppression folks do whatever without NEPA at all. So will this become a catch-22 for fire threatened species?
Possibly. So, more or less colloquially, an “emergency” is (1) an unanticipated event with (2) unanticipated adverse consequences. The great difficulty that land and fire managers are struggling with is what constitutes “unanticipated.” The fire professionals I’ve talked to don’t “unanticipate” fire, but many of them have never seen (or even contemplated) the intensity and spread of the fires they are responsible (and substantially under-resourced) for containing.
So while you will never see me (an unashamed coastal elitist) criticize the 9th Circuit, the current judicial assumptions about the circumstances that constitute “imminent harm” are probably several years past their sell-by date. In my work and in my afterwork I have defended the importance of NEPA analytical procedures, but to the extent those procedures have accumulated the arteriosclerosis of conflict-avoidance, it is possible that they have ceased to serve their Congressionally intended purpose.
Rich, I think anything that adds more work without a review of “how it’s currently working, what have we learned, what do we need to add and what to get rid of” will end up with organizational arteriosclerosis. I think we need a bipartisan commission to review these procedures and make recommendations for improvement. Perhaps this will quell some of the “things are perfect the way they are” views of some groups.
Ironically, political polarization makes any review fraught with landmines. We’ve seen the bias of the radical elements in Congress, including accusations, lies, and conspiracy theories floating around the Forest Service. Most of them fear any form of consensus or compromise.
I agree, partisan polarization is a major obstacle to moving forward, even on issues on which most citizens agree.
The Forest Service has never used their alternative analysis authority for forest management projects like these in the past. The decision to do so is precedential.
How do you define a “forest management” project? Just trees, or shrubs or raking dead needles?
Yes, roads DO need ‘buffer zones’, to function properly.
A good friend of mine was in the Sequoia NF leadership a number of years ago. It is my understanding the place was a dysfunctional mess for quite a while. The forest blamed eviros for their inability to get basic work done, but a lot of the issues were in-house. Yes, Sequoia Forest Keepers and Chad file on even the most benign fuel treatment action, but other forests in the Sierra have had their share of litigation and it didn’t cause things to grind to a halt. I hope the new forest supervisor is making progress cleaning the place up.
I want to see those surface and ladder fuels (and some of those 15-25 inch trees too) treated ASAP, but I also find value in our environmental laws and regulations. It’s not like all those surface and ladder fuels built up last night and the risk of mega-fires started today. It’s been a slow-motion train wreck for a decade. Seems pretty lame that an emergency needs to be called to get stuff done, when so many saw there was an “emergency” 10 years ago.
I still have a disk of pictures that was given to the District Ranger of what is now the Giant Sequoia National Monument. SFK had concerns about the roadside hazard tree project I was working on, and supplied the pictures, along with some GIS coordinates. Some of those coordinates weren’t even in the project area. I did find the site of every one of their pictures, taking pictures of my own, ‘debunking’ every single concern.
Two people, pretending to be Federal employees from another Ranger District, were inside the closed area, taking pictures and writing notes. I chatted with them for a bit, then continued with my work. At the end of my day in the field, I saw a private vehicle inside the closed area, parked with no one around. I kind of guessed what the situation was, so I made sure the gate was locked as I left, locking the ‘offenders’ inside, until the loggers decided to quit for the day. Those loggers said people were waiting to get through the locked gate, back to freedom.
The Sequoia seems to be a lost cause, for me. There’s too many dead trees to ‘manage’ our way out of it.
I agree with what you are saying, but need to point out that this “slow motion train wreck” has been publicly documented, discussed, and predicted for more than 30 years. The past 10 years have only seen things become progressively worse. In my opinion, based on facts.
I think the “emergency” largely has to do with people who have been ignoring these problems from the outset or have been discounting these problems as a result of “climate change.” Now they are having to resort to more legalese (“emergency” is defined differently in the dictionary) in order to justify their decades of failure and misinformation. Again, in my opinion, based on a dictionary.