Michelle Harris, Samantha Winiecki-Love, Ryan Slezak and Colibri Ecological Consulting/via the California Department of Fiash and WIldlife
I thought we’d take a break from the generalized permitting reform discussion to a specific question. Thanks to Claudia Elliot, we have a roundup of the news on the Tulare Wolfpack. I posted on the media coverage of the new wolf discovery here. My legal question has to do with the discovery of new information on ongoing projects.
The Legal Question
Quoting from Claudia here:
The letter, dated Aug. 15, was on behalf of four organizations that have a long history of activism related to giant sequoia issues — the Kern-Kaweah Chapter of the Sierra Club, the Sequoia Taskforce of the Sierra Club, the John Muir Project of Earth Island Institute and Sequoia ForestKeeper.
Sent just one day after the California Department of Fish and Wildlife released news of the wolf pack, the letter states that the new information “implicates ongoing actions the Forest Service is currently implementing, including the Region 5 Post-Disturbance Hazardous Tree Management Project and the Emergency Response, R5 Giant Sequoia Fuels Grove Reduction and Restoration Projects.
“The Forest Service should place a pause on those actions and, in consultation with the U.S. Fish and Wildlife Service, determine whether any activities associated with those projects and others could adversely affect the wolves.”
in the letter, the authors state specifically:
Immediately, this new information implicates ongoing actions the Forest Service is currently implementing, including the Region 5 Post-Disturbance Hazardous Tree Management Project and the Emergency Response, R5 Giant Sequoia Groves Fuels Reduction and Restoration Projects. The Forest Service should place a pause on those actions and, in consultation with U.S. Fish and Wildlife Service, determine whether any activities associated with those and other projects could adversely affect the wolves.
*****The significant new information of the presence of wolves requires supplemental analyses. In doing so, NEPA requires the Forest Service to consider the potential direct, indirect, and
cumulative effects on wolves. Moreover, the ESA requires that the Forest Service find ways to mitigate project and other effects to avoid potential take, including harassment.
It sounds like existing projects need to be reviewed because the wolves moved in. Would this be equally true for, say, the new discovery or movement into the area of endangered species if the project was a wind farm or solar facility or a transmission line? Is the process different for ongoing projects vs. designing new ones?
Update from Claudia Elliott
I’ve paused my twice-weekly Giant Sequoia News until January to allow time to establish what I hope will be a network of journalists and others to better cover giant sequoias and related Sierra Nevada issues. I’m planning an update about the wolves for early January.
In the meantime, here’s a recap of what’s been reported since news of wolves on Sequoia National Forest in August:
From Giant Sequoia News:
Aug. 14, 2023: ‘Wolf flowers’ and wolves – not just giant sequoias can be found in forests of Sierra Nevada
Sept. 11, 2023: ‘About those wolves… Groups call for a pause on Sequoia National Forest projects
Sept. 14, 2023: ‘More about those wolves… Forest Service acknowledges ESA ‘obligations’
Sept. 18, 2023: ‘What Sequoia National Forest had to say about gray wolves last week’
There was a flurry of reporting in August and September after the California Department of Fish and Wildlife made the first report about the wolves. More recently, The Guardian published a piece HERE that included news that the wolves were believed responsible for killing cattle on the Tule River Reservation. The reservation is surrounded on three sides by Sequoia National Forest/Giant Sequoia National Monument.
Since The Guardian report, Scientific American HERE, Newsweek HERE, and Wildfire Today HERE have published pretty much the same story.
As I reported on Sept. 11, four organizations that have a long history of activism related to giant sequoia issues — the Kern-Kaweah Chapter of the Sierra Club, the Sequoia Taskforce of the Sierra Club, the John Muir Project of Earth Island Institute and Sequoia ForestKeeper — called upon Sequoia National Forest to “pause” certain activities (specifically some of the giant sequoia emergency response work and Region 5 Post-Disturbance Hazardous Tree Management Project) to consult with the U.S. Fish and Wildlife Service ti determine whether any activities associated with those projects and others could adversely affect the wolves.
Regional Forester Jennifer Eberlien’s response to the letter was short and included this: “We, too, are thrilled to learn about the wolves. We appreciate your perspective on the potential effects to the wolves from current and future projects and your suggested design features. We acknowledge that we have obligations under the Endangered Species Act and National Environmental Policy Act to review new information.”
Here’s a link to the news release that Sequoia National Forest released on Sept. 14: https://www.fs.usda.gov/detail/sequoia/news-events/?cid=FSEPRD1138931
In mid-September, Jordan Traverso, a spokesperson for the CDFW, responded to my request for information about what concerns the state agency may have about forest management activities in the area of SQF where the wolves were found during the summer. He said: “We have not offered a recommendation about fuel reduction in the Sequoia National Forest, though we are familiar with controlled burns as an important method of fuels management. We are tracking the discussion and will continue to work with partners, including the Tule River Tribe of California and U.S. Forest Service, to protect the wolves and their habitat regardless of whether prescribed burns proceed in the area or not.”
(I will offer my opinion on your legal question, but it’s not legal advice 🙂 )
“Would this be equally true for, say, the new discovery or movement into the area of endangered species if the project was a wind farm or solar facility or a transmission line?” Yes.
“Is the process (of addressing new information) different for ongoing projects vs. designing new ones?” No.
There are separate legal requirements related to “supplementing” NEPA analysis and “reinitiating” consultation under ESA (and they aren’t necessarily a big deal). However, what they have in common is that basically any information that may change the effects analysis already completed under either law must be recognized (as the Forest Service has acknowledged here), and the required process must be followed to consider it.
In a situation similar to these wolves, reinitiation of consultation for grizzly bears was required when they moved into a new area of the Beaverhead-Deerlodge National Forest.
The need for an agency response to “ongoing” actions assumes that the agency retains enough control to do something in response to the new information. I wouldn’t say there is a legal difference that depends on the status of a project, but the logistics can get complicated for actions where implementation has begun.
Recall that hundreds of Forest Service projects in the Columbia Basin were suspended when salmon were listed under ESA. One of the issues involving dams and anadromous fish has been whether the dams themselves are ongoing actions (since they could be removed) or only their operating plans. The same question could be asked of national forest road systems. (I’m not sure this is completely settled, but I don’t think anyone really wants to go there.)
Here’s what might be considered an exception: Forest plans are not subject to these requirements for NEPA because they are not considered “ongoing” (according to the Supreme court, they are completed when adopted). They are still subject to reinitiation requirements for ESA consultation, at least in the 9th Circuit. I’m a little surprised to not see forest plans mentioned here because I believe the Congressional consultation rider only prohibits reinitiation of ESA consultation on forest plans when a new species is listed or critical habitat designated, not when a previously listed species moves in.