This Oregon magistrate judge’s decision (“findings and recommendations” that must be confirmed by full judge before they are effective) is sure to delight Jon and infuriate Sharon. The case challenges BLM’s proposal to “treat” 684,185 acres on the Medford District. Plaintiffs prevailed on most of their FLPMA and NEPA claims.
I recommend reading the full decision. It is not long and well-written. Here are a few highlights:
BLM’s argument, at its core, is that because its actions are not intended to aid the development of habitat, its actions do not need to comply with the standard that requires BLM’s actions aid the development of habitat That reasoning is
circular. If the prohibition on treatments that preclude or delay habitat development by 20 years or more only applies to treatments intended to accelerate habitat development, it would render the direction superfluous.
In simply electing its chosen alternative without fully exploring the conflicting research on the issue through a formal EIS, BLM effectively reduces its findings to only the
positive outcomes, while discounting the coinciding negative possibility that treatments would exacerbate forest fires.
BLM adopted an intentionally non-specific approach in the EA to allow the plans to proceed flexibly under a “programmatic”
framework. By design, the Program has an inherently high degree of uncertainty about the proximate environmental impacts of the approved program of work.
BLM tiers to a global EIS that omits any site-specific analysis and explicitly pushes review to later implementation-level projects. Yet, when faced with a later implementation-level project, like the Late Mungers Project, BLM relies on a DNA, a non-NEPA document which cannot substitute for NEPA analysis, to conclude no further NEPA analysis is required. In this way, site-specific analysis is never completed, and it breeds problems for public participation, transparency, and establishing any sort of concrete certainty as to impacts.
As to relief, the court notes the parties agree on the non-commercial treatments and asks them to seek a resolution of the commercial logging aspects in light of the court’s opinion.
Andy, what am I missing? It sounds like “BLM relies on a DNA, a non-NEPA document which cannot substitute for NEPA analysis, ” I thought that was the point of DNAs.. here’s a link to the FS regs “The Determination of NEPA Adequacy, or “DNA” allows for new decisions based on previous environmental analyses where appropriate. For certain landscapes this will create efficiency and reduce redundant workloads. All decisions based on a DNA require public involvement and a new decision document subject to applicable administrative review requirements.” https://www.fs.usda.gov/inside-fs/leadership/nepa-final-rule Although that was the FS, I think the idea is the same. So is the Judge saying “agency shouldn’t have used one here” or “agencies should never use them”?
2. Can the BLM just proceed with the non-comm treatments and do an EIS for the commercial part?
3. Does the judge think that conflicting research (I’ve written sections about this) can’t be addressed in an EA?
1) What you’re missing is the forest for the trees. Sorry, couldn’t resist. There is no NEPA analysis for the logging being challenged here. Thus there is nothing on which the DNA can rely. The two programmatic NEPA documents both defer site-specific analysis to subordinate NEPA documents, but no such NEPA document was ever prepared . . . only the DNA.
2) Yes, BLM is likely going to be able to do the non-commercial work because the prevailing plaintiffs didn’t challenge it.
3) Once an agency admits that the credible scientific research conflicts as to whether the effects are likely significant, it has no choice but to do an EIS.
2) that seems a little weird. I mean going from a plan EIS to a DNA without a project document? Again, is the Judge saying effectively “no DNA ever, regardless of regs” or something more nuanced?
3) there are always disagreements among scientists, that’s how science progresses (as you know) so who decides what is a “credible” conflict?
2) This was going from a plan EIS to a project EA that did not consider site-specific effects as required by the plan, and then to a DNA that incorrectly concluded that was good enough. I agree with Tony’s comment that DNAs are going to look like a “get out of jail free card” for some people. Also, since the EA should have been an EIS, a DNA couldn’t say that the NEPA was adequate (I’m not sure the court said this, but it’s true.)
3) The key language I saw was BLM not “fully exploring the conflicting research.”
Instead it provided a “generalized conclusion” that “[f]rom a technical or scientific standpoint, BLM determined that the treatments will not have highly
controversial impacts.” That’s the difference between “pass” and “fail” for scientific controversy. (If the BLM had convincingly shown the plaintiffs’ studies to be inapplicable or outweighed by stronger research, I don’t believe it would have been considered controversial for the purpose of NEPA significance. It’s puzzling they didn’t do this given the summary dismissal by many here of research results saying thinning may make conditions worse for fire.)
I wonder what the BLM actually wrote? And who decides if the BLM’s write up “convincingly” shows the plaintiff’s studies to be inapplicable or outweighed by stronger research? I guess the judge needs to be convinced.
I’m not sure who/what the judge was quoting, but it’s probably pretty close to what the BLM actually said: “[f]rom a technical or scientific standpoint, BLM determined that the treatments will not have highly controversial impacts.” Yes, the judge needs to be convinced that BLM instead took a “hard look” at the conflicting science and reached a reasoned conclusion that there is no controversy.
3) Federal agencies can generally survive judicial scrutiny of their scientific conclusions by evaluating and rejecting contrary studies, and documenting their analysis. This may be laborious, but it isn’t usually that hard. The problem arises because the political time scale driving the decision (days) conflicts with the analytical time scale needed to support it (weeks or months).
I’ll throw a question out to the community: Whatever district you’re in, you know who the probable litigants are and you know their likely avenues of legal attack. Of course you’re going to get sued. Why don’t you win more often?
Rich, that’s a great question, and I hope people answer. Just a few additional thoughts:
You know that perhaps outdated Miner et al study from 2014:https://www.researchgate.net/publication/269401491_Twenty_Years_of_Forest_Service_Land_Management_Litigation#fullTextFileContent
It is outdated, but it raises the question “how often should the FS win?” It would be an interesting study to interview folks like DOJ and OGC attorneys and ask them that question. When I have tried to get the OGC retirees to write something for TSW, they aren’t interested.. or perhaps cannot based on legal ethics. It certainly would be an important piece of the puzzle.
I always knew that the DNA would offer someone the “brilliant” opportunity to attempt making a decision without relying on previously-completed AND sufficient NEPA analysis. It has been shown time and again the practice to use a programmatic NEPA document to address site-specific conclusions is flawed. What is it they say about not learning from history?
As laid out here, it is puzzling. BLM has solicitors whom I think would have warned about this… certainly the current Admin is not one for expediting these kinds of projects… perhaps someone has more information as to “why”?
Its important to keep in mind here that the BLM was attempting to tier the DNAs to an EA that “analyzed” over 800,000-acres of the some of the most diverse and complex forest types in the West. Additionally, the purpose of the IVM EA was to expedite the removal of late-successional habitat from Late Successional Reserves via “gap creation” and “open seral” logging prescriptions that would never be subject to site-specific analysis. The insular culture of the Medford BLM is legendary and now its come back to bite them. To get to the backcountry LSR late-successional forest stands that the BLM wanted to remove at Late Mungers one literally has to drive through thousands of acres of industry and BLM tree plantations in the Williams WUI- yet those stands go largely untreated while the BLM seeks to do NEPA-free LSR logging in the backcountry. Maybe this ruling will be a much needed wake-up call for the agency.
I doubt it. This is a district addicted to logging…
Local media coverage of the recent IVM court ruling continued today from the Rogue Valley Tribune. https://www.rv-times.com/outdoors/judges-nixes-blm-effort-to-reduce-fire-risk-by-logging-protected-reserves/article_c88021e6-1ed6-11ef-a7ad-f382eb8b1a02.html
Judges nixes BLM effort to reduce fire risk by logging protected reserves
Ruling in U.S. District Court in Medford leaves door open to log with a lighter touch
A federal judge in Medford has ruled that a U.S. Bureau of Land Management plan to log protected forest reserves in the name of fire prevention doesn’t pass muster with the law.
In a 36-page opinion tinged with worry about wildfire danger, U.S. District Court Magistrate Judge Mark D. Clarke rebuked the BLM for a multitude of faults and pointed out that the agency’s plan might actually increase fire danger.
“Of the fifty communities in Oregon identified as ‘the highest cumulative wildfire risk,’ nearly half are located in southwestern Oregon,” Clarke wrote in a ruling last week. “There has never been a higher need for proactive land planning solutions that are founded on reliable research and dedicated to preserving this area’s homes, communities and natural resources.”
Clarke’s ruling leaves the door open for the BLM to conduct logging using a lighter touch.
Conservation groups had sued the agency over its Integrated Vegetation Management for Resilient Lands Program, which seeks to speed logging and promote the use of low-intensity fire. The logging would create openings that could hamper the spread of fire and reduce competition between trees while the use of low-intensity fire could reduce woody debris on the forest floor that could fuel flames.
But the program would permit logging that would take away trees accounting for up to 70% to 80% of forest canopy within targeted areas in reserves, which Clarke ruled would violate BLM’s own management plan in Southwest Oregon. The reserves, known as late-successional reserves, were created under the 30-year-old Northwest Forest Plan, in order to protect habitat for the threatened northern spotted owl. Out of 1.2 million acres managed by the BLM in its Medford, Roseburg and Lakeview districts, 381,158 acres, or about 32%, are set aside as reserves.
The BLM introduced its IVM program five years ago in Southwest Oregon and used it last year in an effort to speed logging and conduct fuels reduction work in the name of fire resilience and forest health. The program relied on an already completed environmental assessment applicable across most of the Medford District.
The program would allow the commercial logging of trees up to 36 inches in diameter and 173 years old on 17,000 acres in reserves per decade. Conservation groups sued last year after the agency proposed to commercially log 830 acres within reserves located in the mountains between Williams and Murphy in Josephine County. The logging would have taken place under the name Late Mungers project and operate under the IVM program, marking the first time that commercial logging would take place in reserves under the program.
As part of the Late Mungers project, the BLM also proposed to log trees 8 inches and less in diameter and conduct prescribed burns on an additional 7,534 acres. Now that Clarke’s order halts the commercial logging in reserves, it’s unclear whether that small-diameter logging and prescribed fire will take place.
BLM spokesman Kyle Sullivan was noncommittal on where things might go from here.
“We are reviewing the decision and determining next steps,” Sullivan said Wednesday.
The conservation groups bringing the action include the Klamath-Siskiyou Wildlands Center, the Soda Mountain Wilderness Council and the Applegate Siskiyou Alliance, along with Cascadia Wildlands and Oregon Wild. They argued that the BLM failed to comply with its 2016 resource management plan and failed to take a hard look at impacts from the IVM program. The agency argued that it met all its obligations, including obligations under federal environmental law. Supporting the BLM in the litigation are the American Forest Resource Council and the Association of O&C Counties.
In particular, the conservation organizations argued that the BLM failed to ensure that the IVM program complied with what is known as a 20-year standard, while the agency argued that the standard didn’t apply. Under the agency’s overarching 2016 resource management plan, logging in reserves is allowed if it meets what is known as a 20-year standard.
“Under that guidance, BLM is clearly permitted — at times even obligated — to conduct distinct fire management treatments in LSRs (reserves), even if they downgrade or remove habitat, so long as those treatments are limited in actions that do not preclude or delay future habitat development by 20 years or more,” Clarke wrote. “BLM is even permitted to commercially log in LSRs, provided it complies with the 20-year standard.”
However, Clarke found that the agency’s actions could degrade spotted owl habitat beyond 20 years, to as much as 50 years. He also noted that the BLM’s logging could increase fire hazards by creating open areas in the forest that would be replaced with highly flammable new growth, and that the clearings could increase surface wind gusts and temperatures, thus increasing the severity of surface fire behavior.
The BLM argued that the open areas could help slow the spread of fire and could improve forest health by reducing competition between trees.
Most of the conservation organizations sought only to stop the commercial logging in reserves while allowing small-diameter logging and prescribed fire treatments to continue, although the Siskiyou Applegate Alliance wanted the entire IVM program halted. Clarke put his ruling on hold for 30 days to give the parties time to arrive at an appropriate remedy. His ultimate ruling must be ratified by Senior U.S. District Court Judge Ann Aiken.
“Plaintiffs acknowledge that BLM’s plans include proactive and admirable strategies directed across many high-risk areas,” Clarke wrote. “Given the mutual affection for Oregon’s forests shared by all in this action, the Court is confident that dedicated collaboration will result in an effective solution.”
“The Court further strongly encourages the parties to work collaboratively to see if the noncontroversial parts of this important forest management project can move forward without significant delay.”
Nick Smith, public affairs director for the American Forest Resource Council, stood by the BLM and hoped Aiken would reverse Clarke’s decision.
“We continue to believe this project is incredibly important given the risk of fire to these dry forests,” Smith said, in a telephone interview Wednesday. “IVM represents a very major effort on the part of the BLM to restore the health of these forests.”
“We’re willing to work collaboratively to move pieces of these projects forward,” he added.
KS Wild released a statement on Wednesday about the decision.
“The BLM once again put its logging agenda above collaboration, fire resiliency and wildlife habitat and the court held them to account for ignoring science, the law and the public …,” said George Sexton, KS Wild conservation director.
The parties had argued their case April 2 before Clarke at the federal courthouse in Medford, following a demonstration outside by about 35 people opposed to the BLM’s IVM program, which would allow for commercial logging of up to 4,000 acres a year, small-diameter thinning of up to 6,500 acres a year and prescribed fire on up to 7,500 acres a year across the BLM’s Medford district.
In his ruling, Clarke wrote that the agency’s plan, if approved, “would have sweeping impacts” that “would severely undercut the ability of (the BLM) to protect and promote habitat decades into the future.”
The case, he wrote, “arises out of an extraordinarily delicate situation and presents a unique opportunity to address a solution that will impact hundreds of thousands of acres of high-risk lands. In this regard, the Court echoes KS Plaintiffs’ sentiment: ‘Getting this project right could benefit southwestern Oregon for years to come, while getting it wrong may have devastating consequences across the landscape for fire behavior and wildlife habitat.'”
Thanks, Michael, this is a helpful article. It sounds like the judge thought that prescribed fire is OK, non-commercial thinning is OK, but commercial thinning is a fire hazard.. somehow..??
Despite the judge’s eloquence and hyperbole, I think it’s all a matter of prescription, not commercial-ness.
One of the plaintiffs thought that prescribed fire and noncommercial thinning is ok, and the other didn’t. He is asking them to try to work this out before recommending what relief to grant.
Hi Sharon,
I agree with your point that its a matter of prescription not commercial-ness. The problem is that the BLM’s “open seral” and “gap creation” logging prescriptions were designed to remove late-successional habitat from Late Successional Reserves. I don’t think Magistrate Clarke engaged in hyperbole in questioning what the purpose of an LSR is if the BLM logging prescriptions were designed to remove the very habitat that the land allocation was designed to promote and retain. A commercial LSR treatment could indeed treat and maintain spotted owl NRF habitat. The BLM (and FS) have conducted those kinds of treatments on many acres. But IVM was about meeting an arbitrary commercial LSR logging target that the BLM established for itself with prescriptions designed to remove late-successional forests from the reserves. Probably not a winning formula.
I got two main things out of this case.
FLPMA/NFMA: I’ve seen this act before, where the agency is surprised to find that the LMP keeps it from doing what it wants to do, so it gets creative trying to work around it. The judge thought this was a pretty blatant example, and I agree (and am delighted). I think the judge glossed over a fundamental point, though. When the IVM EA says, the Open and Intermediate “treatments are not designed to speed the development of spotted owl nesting-roosting habitat,” that demonstrates lack of conformance to the plan, given that LSRs are to be managed for only two objectives: maintaining and promoting habitat.
NEPA: I think this case is noteworthy from the standpoint of condition-based NEPA as well. Previous cases have dealt with the condition-based “project” decision alone. I have suggested that the real problem will show up when they try to implement that decision without further NEPA. I think the attempt to use a DNA sheds a little more light on why that isn’t likely to work very well. The judge refers to the need for site-specific analysis frequently, and it is largely a separate issue from the “significant effects” question, but concludes, “the Court does not reach Plaintiffs’ arguments regrading whether BLM took a “hard look” for purposes of the IVM EA. I think this is referring particularly to the site-specificity question, and if the BLM prepares an EIS that doesn’t address this, implementation may fail again.
One other observation – this might be the first time I’ve looked very closely at what a BLM plan looks like (rather than a Forest Service plan), and I was amazed at how the pieces are all the same but BLM has different names for all of them. “Let’s make it even harder for the public to understand what we’re doing.”
The San Juan Public Land Center (at the time part of Service First and dual delegated) actually tried doing a joint RMP/LMP on the joint lands.. they learned a lot. I tried to get some of the folks to write about their experience for TSW but was unsuccessful. Attempting to harmonize the requirements for the good of public understanding does not seem to be a popular view.
One of the plaintiffs’ attorneys tells me that BLM’s Oregon State Office is the genius behind this NEPA tiering fiasco, i.e., the notion that site-specific environmental analysis is not needed to log a site.
As a result of this bad advice from its higher-up, the BLM has set the stage for a western Oregon train wreck. Remarkable!
BLM has one planning job to do — tell the truth and obey the law. Apparently that’s still a bridge too far.