Subtitle C actually says “addressing frivolous litigation” and Section 121 is titled “Commonsense Litigation Reform”
Here’s the text. We’re going to need help from lawyers out there..
a) IN GENERAL.—A court shall not enjoin a fireshed management project under this Act if the court determines that the plaintiff is unable to demonstrate that the claim 7 of the plaintiff is likely to succeed on the merits.
8 (b) BALANCING SHORT- AND LONG-TERM EFFECTS OF FOREST MANAGEMENT ACTIVITIES IN CONSIDERING INJUNCTIVE RELIEF.—As part of its weighing the equities while considering any request for an injunction that applies to any agency action as part of a fireshed management project under this Act, the court reviewing the agency action shall balance the impact to the ecosystem likely 15 affected by the fireshed management project of—
16 (1) the short- and long-term effects of under taking the agency action; against 18 (2) the short- and long-term effects of not undertaking the action.
20 (c) TIME LIMITATIONS FOR INJUNCTIVE RELIEF.—
21 (1) IN GENERAL.—Subject to paragraph (2), the length of any preliminary injunctive relief and stays pending appeal that applies to any agency action as part of a fireshed management project under this Act shall not exceed 30 days.1 (2) RENEWAL.—
2 (A) IN GENERAL.—A court of competent jurisdiction may issue one or more renewals of any preliminary injunction, or stay pending appeal, granted under paragraph (1).
6 (B) UPDATES.—In each renewal of an injunction in an action, the parties to the action shall present the court with updated information on the status of the fireshed management project.
11 (d) LIMITATIONS ON CLAIMS.—Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a fireshed management project shall be barred unless— such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the proposed agency action;
This sounds like a time limit for filing.
19 (2) such claim is filed after the issuance of a record of decision or other final agency action with respect to the relevant proposed agency action; and
How could it be filed before the ROD is issued?
22 (3) such claim does not challenge the use of a categorical exclusion under this section.
I’m kind of lost in the negatives here. “a claim shall be barred unless it does not challenge the use of a CE? So claims about CE-hood would be barred? Under “this” what (?) section.
Section 122 sounds like the Cottonwood fix but maybe not.
ARBITRATION PILOT PROGRAM
This is always one of my favorites. People learn a lot from pilots. This one has a ceiling, no more than 15 projects per year per FS Region or BLM States. You could lower the numbers, but is anyone really against it? Apparently the results would not be subjected to judicial review, except “as 16 provided in section 10(a) of title 9, United States Code.” Maybe someone knows what that is.
COMMUNITY WILDFIRE RISK REDUCTION PROGRAM.
Then there’s a section on WUI. My friends who are involved in community wildfire programs tell me that this would be very useful
create a single, uniform application and portal for local communities seeking to apply for Federal financial assistance or 23 technical assistance programs targeted at reducing fire risk to communities
Also these:
SIMPLIFICATIONS.—In creating the portal under paragraph (1), the Secretaries and the Ad1ministrator shall seek to reduce the complexity and length of the application process.
18 (3) TECHNICAL ASSISTANCE.—The Secretary of the Interior shall provide technical assistance to communities looking to apply for financial assistance under the streamlined application and portal created under paragraph (1).
Of course, Congress can’t do that, but a really wild and crazy idea would be for States to try to simplify procedures for funding as well and maybe try to harmonize with the feds..
Then there’s section 202 which seems to be about controlling management of fires for resource benefits. That’s probably worth its own post, if anyone wants to take a look.
A Community Wildfire Defense Research Program (expanding JFSP to include):
(1) different affordable building materials, including mass timber;
5 (2) home hardening;
6 (3) subdivision design and other land use planning and design;
8 (4) landscape architecture; and
9 (5) other wildfire-resistant designs for structures or communities, as determined by the Secretary.
And a Community Wildfire Defense Innovation Prize
A new CE for power line operation and maintenance:
“the development and approval of a vegetation management, facility inspection, and operation and maintenance plan submitted under section 512(c)(1) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1772(c)(1)) by the Secretary concerned; and 11 (2) the implementation of routine activities conducted under the plan referred to in paragraph (1).
Plus a change to FLPMA from 10 to 50 feet of a power line for hazard trees.
Seeds of Success
I imagine Defense is included here as federal lands include Forest Service, some Interior agencies and DOD. The point seems to be enhance the domestic supply chain of native seeds, in a manner coordinated across agencies. It seems like it’s about native plants perhaps not including trees, as it appears to be BLM focused. I’d put them (trees and other natives) together somehow and get them coordinated.
Biochar Demonstration Projects and Biochar Competitive Grants. (more on this later)
Accurate Hazardous Fuels Reduction Reports
This approach sounds plausible to me, certainly it needs clarification and consistency. Many other groups, of various persuasions, have pointed out the problems with the current approach.
Public Private Wildfire Technology Deployment and Testbed Partnership
This seems like a mechanism for coordination among agencies to ensure real-world testing of new technologies. Hopefully, this will ensure that less USG funding is spent on random “sounds plausible” technologies, and gets them to field testing. Note that it includes say, thinning as a hazardous fuels reduction, so all our friends interested in mechanizing and improving marking and harvesting would be included.
(A) hazardous fuels reduction treatments or activities;
5 (B) dispatch communications;
6 (C) remote sensing, detection, and tracking;
8 (D) safety equipment; and
9 (E) common operating pictures or operational dashboards; and
11 (3) partner with each covered entity selected to participate in the Pilot Program with the appropriate covered agency to coordinate real-time and on-the-ground testing of technology during wildland fire mitigation activities and training.
GAO Study on Forest Service Policies
(A) the effectiveness of Forest Service wildland firefighting operations;
(B) transparency and accountability measures in the Forest Service’s budget and accounting process; and
(D) the suitability and feasibility of establishing a new Federal agency with the responsibility of responding and suppressing wildland 2 fires on Federal lands;
What happened to C? Also I’d have two studies, one that looked at the Interagency wildland firefighting and the idea of a new Federal Agency (why just FS?) and a separate one for FS budget transparency and accountability.
Forest Service Western Headquarters Study
It’s not clear to me whether this is to substitute for Regions or to add another layer of bureaucracy. Perhaps it will be clear in FS testimony tomorrow.
Summary: there are lots of interesting ideas in this bill. It will be interesting to see the FS testimony. What do you think?
Very interesting and useful; both the prosed legislation and your commentary. Thanks. You may remember when “field testing “ was called “research “. We need a lot more applied research on forests and fire in my view.
When I think about “field testing” technology, I think about formally testing it under operational conditions. That’s different from “research”.. it’s more like technology development. Right now it appears that companies are developing and marketing technologies that they think will be useful, but they need to be field tested in operational conditions by groups that are financially independent. I think that’s what this is getting at.
OK. But if it involves a formal test of alternative options including no treatment controls I would call that applied research.
Oh, I was thinking more of technologies.. like fire behavior models, harvester with maps of each tree and AI to pick them, and so on. More about things we already do, and technologies to improve them.
Alternative treatments (like on an Experimental Forest) tend to be considered applied research. There are many gray areas, though. What it’s called might have to do with what bucket of money someone has access to, at least in the FS.
Hear, hear!
Does anyone have a link to this bill? Sorry if I missed it.
Sorry it was in the first post of the two.. https://naturalresources.house.gov/uploadedfiles/discussion_draft_of_h.r._04.17.24.pdf
With respect to the Western Headquarters study, I’m assuming the FS Western HQ would parallel the BLM one:
https://www.blm.gov/office/blm-western-headquarters-grand-junction
Support for the new BLM office was largely (though not entirely) partisan, and the Biden administration partially reversed the initiative:
https://soprissun.com/blm-headquarters-colorado-sojourn-short-and-maybe-not-so-sweet/
It’s possible that the Westerman bill seeks to avoid some of the pitfalls of the BLM move, though the fact that the bill language only asks the FS to examine the “benefits” of a new HQ might lead some observers to skepticism. Bill language requiring the FS to study the potential benefits and drawbacks of a new HQ could alleviate this problem.
Thanks, Rich! Maybe that’s a quid pro quo to someone to get support. I remember trying to combine regions (heck I even remember the BLM/FS interchange) and they always founder on the shoals of “the devil you know is better than the one you don’t” and “keeping jobs where they are” although the latter seems less applicable nowadays with folks at those levels working from wherever. Maybe there’s a document somewhere that argues the need. The last thing the FS needs is more overhead (IMHO).
There have been a lot of Westerman “discussion drafts,” so I’m not sure how excited anyone should get about this one. I haven’t looked at the whole thing, but it doesn’t seem quite as ridiculous as earlier versions (or maybe I’m normalizing it?).
§121(a) “A court shall not enjoin a fireshed management project under this Act if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.”
This is an existing criterion for preliminary injunctions, and while other factors may normally be considered, I doubt if many cases are enjoined that are NOT likely to succeed on the merits. (I can imagine a situation where there is irreparable harm to a plaintiff and little cost to the agency, but that seems more like a basis for settlement.) So I don’t think this section changes much.
But in the next section, the courts would be told to “balance the impact to the ecosystem.” I have no idea what that means, and doubt the courts would either.
“§121(d) LIMITATIONS ON CLAIMS.—Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a fireshed management project shall be barred unless— (1) such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the proposed agency action; (2) such claim is filed after the issuance of a record of decision or other final agency action with respect to the relevant proposed agency action; and (3) such claim does not challenge the use of a categorical exclusion under this section.”
I agree this is unnecessarily confusing. Why not just say claims must be filed within 120 days after the issuance of the ROD? I believe the 3rd criterion is that the only kind of claim that may be made is that a decision does not comply with the selection criteria that entitle it to use a CE. That would be: (i) Wildfire exposure to communities, including risk to structures and life. (ii) Wildfire exposure to municipal watersheds. (iii) Risk of forest conversion due to wildfire. (§101(a))
I like that they are prioritizing, and I think I agree with their priorities (in that order), but that depends on how some ambiguous terms get interpreted. I think there is too much flexibility unless they define “wildfire exposure,” “communities,” “forest conversion,” and “risk.” There is arguably some risk of just about anything happening. Floodplains are delineated based on probabilities, and something similar should be used here.
There is also the matter of how they are going to define “the top 20 percent of firesheds for wildfire exposure.” And also §106(a)(2): “The responsible official shall carry out the following forest management activities as fireshed management projects under this section…” “Shall” makes no sense if what they mean is this is a menu for what would qualify for a CE under this bill. They should say that.
Yes section 122 looks like the Cottonwood fix, with the addition of the new information test for reinitiating consultation.
The double negatives do make this hard to understand. For example, doesn’t §121(d) LIMITATIONS ON CLAIMS 3) say that claims will be barred if they challenge the use of a CE under this section? So if they say a CE is being used to reduce (i) Wildfire exposure to communities, including risk to structures and life. (ii) Wildfire exposure to municipal watersheds. (iii) Risk of forest conversion due to wildfire, that cannot be challenged?
Is it also saying that CEs under this section cannot be challenged for other reasons, such as existence of extraordinary circumstances?
Can a law really be made that includes a clause stipulating that it cannot be challenged?
I would think/hope that it would depend upon the individual project. If a project cuts older and larger trees, I would think that doesn’t really fit into the fire safety realm. Sanitation or overstory removal, while reducing fuels and fire danger, doesn’t really fit into a fuels CE. I also think that diameter limits are an unfortunate but necessary idea, for flammable forests. We need transparency and accountability, and not volume grabs.
I don’t think you can say in a law that compliance with that law can’t be challenged in court (separation of powers). That’s why I interpret it the opposite way – that projects can only be challenged in relation to the CE (meaning that other laws, like ESA, don’t apply to this situation, something which Congress could say – and I think that would also mean that extraordinary circumstances from NEPA wouldn’t apply). I agree that the “not” in (3) makes it say the opposite, but I wonder if the drafter just confused theirself. So yes, confusing and hopefully it remains only a “discussion draft.”
Maybe it means they can challenge all kinds of other stuff but maybe not the use of a CE? So with coevolution, I would think the lawyers of those who didn’t want the project would use NFMA and ESA instead or other NEPA challenges than CE use. Then the judges would possibly be grumpy about having their power restricted and be more inclined to favor those arguments against the FS.
Perhaps TSW lawyers can weigh in? I asked the Committee staff about what appeared to be typos. They referred me to their Comms folks, from whom I never heard.
To obtain a preliminary injunction in the 9th Circuit, a plaintiff must establish “that [1] he is likely to succeed on the merits, [2] he is likely to suffer irreparable harm in the absence of preliminary relief, [3] the balance of equities tips in his favor, and [4] an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)” (pronouns in original).
Factors 2 and 3 have, on occasion, been problematic for the FS. The problem is physical: once a stem is horizontal, it cannot easily be restored to vertical. Federal district court judges, as discussed elsewhere (I think) on this blog, are almost uniformly unschooled in land management issues. Thus many of them will, in an understandable if not always defensible exercise of caution, use factors 2 and 3 to keep the relevant trees vertical via a preliminary injunction, pending resolution of the case in question.
The Westerman bill language would direct judges to abandon that caution. It would eliminate factors 2 and 3, and force judges to base their orders entirely on factor 1. I agree with Jon that this language, if enacted, would likely alter the legal landscape minimally for two reasons: (1) even prior to this language few courts have issued injunctions in the absence of probable plaintiff success on the merits; and (2) judges are generally hostile to executive or legislative branch hectoring.
The Salvage Rider was arguably an exception, but there Congress foolishly spelled out its own responsibility in excruciating legislative detail. The Supremes were probably only too happy to say, in effect, “good luck with that, Article I folks.” As far as I know, no similar legislation has rolled off the Hill since then (at least in the forest management context).
Even though I’ve not been following all this as closely as you and Jon, I agree on both (1) and (2). I also think (1) is wishy washy enough that anyone could argue either way.. since there are usually points to be made on either side, so the judge has discretion. She/he can go with their gut and rationalize it with whichever set of arguments supports their position.