I mentioned ESDs to Jon yesterday in a comment. I wasn’t being psychic, not do I have a direct line to USDA. But the fact is that there are only so many possibilities in NEPA world and many of them have been used before. Here’s the link, thanks to Anonymous. Also, the very successful SERAL projects on the Stanislaus used ESD (see #8 in SERAL post).
It sounds like using an ESD means the FS only needs a proposed action and the no-action alternative, and there is no objection process. But consultation for ESA and NHPA compliance still occurs. Additional context is this letter from two years ago.
Secretary Vilsack also determined that an emergency situation exists on certain lands (post fire recovery areas) that experienced high intensity wildfire in fiscal year 2022, including NFS lands in: (1) New Mexico (Catron, Colfax, Grant, Lincoln, Los Alamos, Mora, San Miguel, Sandoval, Sierra, Socorro, Taos, and Valencia counties), (2) Arizona (Coconino and Yavapai counties), and (3) California (Alpine, Amador, Butte, El Dorado, Humboldt, Kern, Lassen, Madera, Mariposa, Plumas, Shasta, Santa Barbara, Siskiyou, Tehama, Trinity, and Tulare counties).
Within these designated areas, I have the authority to approve emergency actions for which NEPA compliance actions are not subject to administrative review under 36 CFR 218, and an environmental assessment or environmental impact statement need only analyze the no action alternative and the proposed action. In addition, a proposed emergency action is subject to special injunctive relief standards if challenged in court.
Maybe our lawyer friends can tell us more about the “special injunctive relief standards.” So it sounds like the big change from 2023 is expanding the use of ESD from the 250 identified high-risk watersheds to a (much) broader area. Of course, if your area was not in the areas Secretary Vilsack selected (we don’t know why those were selected), you might think it’s a great idea to expand.
Or we could blame the Congress for putting this in the BIL in the first place, as stated in the 2023 Letter:
Section 40807 of the BIL authorizes the Secretary to determine that an emergency exists where implementation of emergency actions is necessary to achieve relief from hazards threatening human health and safety or to mitigate threats to natural resources on National Forest System land and adjacent lands.
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While hunting around for an example of an EA or EIS, I did find this alternative arrangements letter from 2015, so the emergency idea has been around in California for awhile. What is it about California and NEPA? Lake Tahoe has their own CE.., 2015 alternative arrangements, 2023 ESD..?
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Anyway, here’s the current announcement and letter.
(Washington, D.C., April 4, 2025) – U.S. Secretary of Agriculture Brooke Rollins issued a Secretarial Memo (PDF, 2.9 MB) to establish an “Emergency Situation Determination” on 112,646,000 acres of National Forestry System (NFS) land (PDF, 19.8 MB). This Memo comes on the heels of President Donald J. Trump’s Executive Order
to expand American timber production by 25%, and it will empower the U.S. Forest Service to expedite work on the ground and carry out authorized emergency actions to reduce wildfire risk and save American lives and communities.
“Healthy forests require work, and right now, we’re facing a national forest emergency. We have an abundance of timber at high risk of wildfires in our National Forests,” said Secretary Rollins. “I am proud to follow the bold leadership of President Trump by empowering forest managers to reduce constraints and minimize the risks of fire, insects, and disease so that we can strengthen American timber industry and further enrich our forests with the resources they need to thrive.”
The Memo issued by Secretary Rollins is part of a larger effort to ensure American resources are properly managed for generations to come. This work will support rural economies, reduce wildfire risk, and build capacity through workforce alignment and expanded partnerships.
This Memo will also spur immediate action from the U.S. Forest Service directing field leadership to increase timber outputs, simplify permitting, remove National Environmental Policy Act (NEPA) processes, reduce implementation and contracting burdens, and to work directly with states, local government, and forest product producers to ensure that the Forest Service delivers a reliable and consistent supply of timber.
This action builds on Secretary Rollins’ announcement last month to unleash American energy by directing the USDA Forest Service to take action to remove burdensome Biden-era regulations that have stifled energy and mineral development on Forest Service land. As part of these decisive actions, the agency also canceled two mineral leasing withdrawals on Forest Service land that will help boost production of critical minerals.
Here’s some of the text:
a. EMERGENCY SITUATION DETERMINATION
To address this crisis, I am making an Emergency Situation Determination (ESD) under section 40807 of the Infrastructure Investment and Jobs Act (IIJA). This ESD encompasses 66,940,000 acres of NFS lands rated as very high or high wildfire risk that are hereby determined to be an emergency situation as defined by IIJA. In addition, I have determined that the 78,800,000 acres of NFS lands designated under Section 602 of the Healthy Forest Restoration Act (HFRA), that are experiencing declining forest health; at risk of experiencing substantially increased tree mortality over the next 15 years [ from time of designation] from insect and disease infestation; or containing hazard trees posing an imminent risk to public health, infrastructure, and safety, are an emergency situation as defined in the IIJA. There are approximately 33,846,000 acres of NFS lands which overlap between wildfire and insect and disease risk. In total, this ESD designates 112,646,000 acres of NFS lands as an IIJA emergency situation, which is 59 percent of all NFS lands. See Map #I Forest Health and Fuels Emergency Situation Determination.
I am also providing federally recognized Tribes, Alaska Native Corporations, and States the ability to request additional areas to be included in this ESD under IIJA section 40807
through the Regional Forester to the Chief of the Forest Service for approval.Actions taken pursuant to this ESD will support improving the durability, resilience, and resistance to fire, insects, and disease within forests and grasslands across the National Forest System.
Consistent with IIJA section 40807 and this determination, the Forest Service may carry out authorized emergency actions after an ESD is declared to achieve relief from threats to public health and safety, critical infrastructure, and/or mitigation of threats to natural resources on NFS lands. These actions will improve the durability, resilience, and resistance to fire, insects, and disease within national forests and grasslands across the National Forest System. To be eligible to use this authority, at least 50 percent of the treatment areas supporting this authorized emergency action must be within the designated areas.
Proposals using the special emergency action procedures at IIJA section 40807 shall:
• Reduce wildland fire risk to communities, critical infrastructure, or key ecological values; or
• Reduce/mitigate post fire risks needed to protect communities, critical infrastructure, or key ecological values; or
• Reduce hazardous fuels by removing or modifying vegetation to lower the risk of wildfires; or
• Reduce the density of fire-dependent forests; or
• Support the durability and resiliency of forests and grasslands; or
• Reduce hazardous fuels to help make wildfire response, as well as ingress or egress, safer and more effective; and
• Be authorized by the Forest or Grassland Supervisor.Authorized emergency actions to respond to emergency situations include the:
• Salvage of dead or dying trees;
• Harvest of trees damaged by wind or ice [Note: or other natural disasters];
• Commercial and noncommercial sanitation harvest of trees to control insects or disease, including trees already infested with insects or disease;
• Reforestation or replanting of fire impacted areas through planting, control of competing vegetation, or other activities that enhance natural regeneration and restore forest species [Note: the restoration of forest species includes prevention, suppression, and eradication ofinsect, disease and invasive species outbreaks];
• Removal of hazardous trees in close proximity to roads and trails;
• Removal of hazardous fuels;
• Restoration of water sources or infrastructure [Note: the restoration of water sources includes watersheds];
• Reconstruction of existing utility lines; and
• Replacement of underground cables.Any required environmental assessment or environmental impact statement for an authorized emergency action requires analysis of only the proposed action and the no action alternative and is not subject to the project-level pre-decisional administrative review (“objections”) or any processes set forth in 36 CFR Part 218.
b. OTHER EMERGENCY AUTHORITIES
The IIJA section 40807 authority is one of several tools that can be used to achieve expedited compliance around emergencies. Within designated areas, the Forest Service shall deploy, or continue to deploy, other emergency authorities including:
• Emergency and direct hire authorities (including hiring Tribal crews to implement and monitor);
• Expedited contracting authorities or mechanisms, including virtual incident procurement (VIPR), sole source contracting, and USDA contracting authorities and include Tribes within that effort;
• Expedited grant and agreement authorities or mechanisms, including with Tribes;
• Exemptions, waivers, expanded inclusions, and expedited mechanisms for emergency programs on joint efforts with USDA agencies and Tribes;
• Emergency consultation to comply with the Endangered Species Act;
• Emergency and programmatic consultation to comply with the National Historic Preservation Act (NHPA);
• Emergency procedures to comply with the Clean Water Act (CWA); and
• Expedited permitting, certification, and qualification processes as defined in Forest Service directives or as directed by the Chief.Additional administrative authorities within the Forest Service Chief’s discretion may also be deployed to deliver emergency and expedited response. Nothing herein changes the requirement for Tribal consultation but may require expedited consultation time frames under certain conditions. In scenarios where Tribal consultation time frames need to be expedited, the Forest Service shall notify Natural Resources and Environment.
The agency shall use IIJA Section 40807 where authorized emergency actions can facilitate current and future post-disaster recovery actions within the scope of this Emergency Situation Determination.
c. TIMBER PRODUCTION AND SOUND FOREST MANAGEMENT
In order to increase domestic jobs and prosperity, increase economic independence, and protect our national security, the Forest Service will:
• Issue new or updated guidance to increase timber production, decrease the time to offer timber supply, and increase certainty in future timber supply. This guidance should include use of Good Neighbor Authority, stewardship contracting, and agreements or contracts under the Tribal Forest Protection Act;
• Streamline, to the extent allowable by law, all processes related to timber production, including project planning, decision-making, implementation (including preparation, appraisals and measurements), and required certifications;
• Develop a strategy to improve the efficiency of delivering the timber program and increase quantity and consistency in volume offered; and
• Identify legislative proposals that would improve timber production and sound forest management.
d. SHARED STEWARDSHIP AGREEMENTS
The Forest Service will work with State and local partners and federally recognized Tribes to collaboratively align with their respective priorities. Many States and Tribes have Forest Action Plans that prioritize critical treatment needs, and this memo directs the Forest Service to work with States and Tribes to also prioritize these areas and projects. Given the urgency and cross-jurisdictional nature of the current crisis, the Forest Service shall work quickly to proactively update and expand Shared Stewardship
Agreements to bring the full power of our partners to help address this emergency.
Immediate implementation of actions under this ESD should proceed concurrently with the updating and creation of these agreements.
e. REPORTING
Each calendar year, the Forest Service shall report to Natural Resources and Environment on the use of emergency authorities that will include those actions taken pursuant to this
Forest Health and Fuels Reduction Emergency Situation Determination detailing:
• Status of any ongoing environmental analysis or compliance actions;
• Listing of completed (signed decision) or future compliance actions;
• Status of any ongoing consultation, including the National Historic Preservation Act and Endangered Species Act;
• Status of any ongoing coordination with local or state emergency management offices or other federal agencies;
• Status of coordination and consultation with federally recognized Tribal governments and/or Alaska Native Corporations; and
• Listing of any completed (implemented on the ground) or future mitigating emergency actions, to include number of acres treated or anticipated to be treated.
5. IMPLEMENTATION
The Under Secretary for Natural Resources and Environment is responsible for implementing all aspects of this memo, in coordination with the Office of General Counsel. In the absence of an Under Secretary, the Chief of the U.S. Forest Service will carry out the responsibilities assigned in this Memo.6. EFFECTS OF THIS MEMO
This memo is intended to improve the internal management of the Department and to assure implementation of the above-referenced Executive Order. This memo and any resulting report or recommendations are not intended to, and do not create, any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person. To the extent there is any inconsistency between the provisions of this memo and any federal laws or regulations, the laws or regulations will control.
The text of section 40807 is here:
https://www.congress.gov/bill/117th-congress/house-bill/3684/text#:~:text=SEC.%2040807.%20%3C%3CNOTE%3A%2016%20USC%206592c.%3E%3E%20%20EMERGENCY%20ACTIONS.
As for “special injunctive relief standards,” section 40807(e) states:
(e) JUDICIAL REVIEW OF EMERGENCY ACTIONS.—A court shall
not enjoin an authorized emergency action under this section 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 section reduces the four part test for injunctive relief used in the 9th Circuit (and perhaps others) to just one element – plaintiffs’ likelihood of success on the merits. Masochistic readers desiring more injunction background info can go here:
https://forestpolicypub.com/2024/10/02/law-concepts-for-the-non-lawyer-rich-j-on-preliminary-injunction-factors-and-the-balance-of-equities/
OK, it sucked me in. So you have a judge, who has to decide if “the claim is unlikely to succeed on its merits.” But the claims can be incredibly detailed” the Forest Service used the x carbon model instead of the y model, FWS didn’t look at…”
It almost seems as if the judge would have to dive into all the details pre-actual case. What does the judge (tend to) look at?
Here’s the typical list of what a judge must normally consider for a preliminary injunction: a likelihood of success on the merits, irreparable harm if the injunction isn’t granted, a balance of equities and hardships that favors the injunction, and that the injunction is in the public interest. I don’t pretend to know the madness behind this method, so I would be interested in someone critiquing my take on this.
It has always seemed to me like there are really only two factors: are plaintiffs likely to win, and if so, how important is it to protect their interest (vs other interests) until a court decides that (and it’s a sliding scale balancing the two). It has also seemed to me that the arguments over who is likely to win should be the best shots of the parties in the time they’ve got to do it. There are often plenty of “details.” (I suppose this could vary based on the perceived harm to their interest.) I don’t think courts often change their minds between a PI and the final opinion on the merits, but courts can lift injunctions at that point, and I think I’ve seen them find for plaintiffs when the harm has already occurred.
Wow, I see a lot of high-elevation cold moist forest in the map of “emergency” areas. These forests don’t need logging, unless they are in the structure ignition zone.
“the Forest Service only needs a proposed action and the no-action alternative, and there is no objection process”
Only one action alternative assumes these forests need only one thing (fuel reduction) and there are no competing values to balance, which is a farce. Fuel reduction can be done many different ways, and there are many competing values, including wildlife, water quality, tribal/cultural values, carbon, climate change refugia, mature and old-growth, weeds, recreation, scenic values, roadless areas, etc.
No objection process likely means more litigation, because conflicts cannot be resolved during an objection resolution process. Another effect likely to backfire.
Proponents may regret this bold affront to our public lands.
To be fair, environmental lawyers are not in the business of settling their concerns in Objections. The Trump admin is extreme, yes, but I argue the status quo brought us to this wacky admin at the helm. And part of that status quo has been environmental law firms regularly using law suits abusively in the “Restoration Era”. Timber Wars have been dead since the 90s, but enviros need to own up their myopic concerns that have broadly hindered conservative, active management. FS management goals have incorporated ecosystem approaches, and enviros have kept upping the ante. Moderation and compromise is the way, and enviros need to own that they have not done much of that.
No Second, that is not one the “one action alternative” means. It means that the FS can propose one action and not several alternatives. But any EA or EIS considers the competing values (especially the ones likely to be litigated) at great length.
Personally I have seen the ESD process used without litigation. I think it depends on the calculus employed by litigating groups, which is not public and doesn’t seem to have been studied by our social scientists, (and one would think, such an important piece of the puzzle to understand) so it’s a bit of a black box.
You can say that “no objections leads to more litigation” but we have no evidence that that is the case. It might be fun for some grad students or others to find recent projects using Vilsackian ESDs to see which ones were litigated, if any and hypothesize why or why not.
Worth a read: https://www.usda.gov/sites/default/files/documents/implementation-secretarial-memo-1078-006.pdf
Thanks, Jay! Will post separately.
Greetings, I penned a response to a scratched-vinyl-record NEPA document back in 2018; something that comes up in every document and receives the same response from lead agencies when it comes down to fire (any kind of fire) and future desired condition – whatever that is – “…outside the scope of…”… (repeat, repeat, repeat).
So, I suspect the following observation will once again likely be outside the scope of this ongoing commo – but, is what I ended the initial NEPA “repeat, repeat, repeat” segment of my comment back then –
” I refer to GAO/RCED-99-65 APRIL 1999, A Cohesive Strategy is Needed to Address Catastrophic Wildfire Threats. ‘The Forest Service feels that significant progress will be made toward eliminating the threat of catastrophic wildfire in the interior West by 2015’” (March 22, 1999, USFS, Office of Finance). At the time it was published, everyone had high hope for the best result.
Now then, some of us did bring up some of the concerns cited in other comments about this Secretary’s Memo prior to BIL being enacted NOV 2021. That was back when it was double the verbiage as when signed into law w/amendments stretching over 89 years worth of law, one even going back to the days of the original Revised Statute post-Civil War. Anyway, BIL was initially titled, ” Introduced in House (06/04/2021) Investing in a New Vision for the Environment and Surface Transportation in America Act or the INVEST in America Act, reaching 2,739 pages with some 536 amendments.”
The Senate pared it down to 1039 pages and renamed it Infrastructure Investment and Jobs Act for good reason, or, at least many thought so. Litigants seem to have had a heyday ever since for a not so new vision for the environment. Yet, here we remain; repeat, repeat, repeat.
Respectfully
Does anyone know where one could access the spatial data for these FHFESD lands? Thank you in advance.
No, I would ask FS public affairs first.
I began my career as a biologist with the FS in 1978. At that time Timber Sales were authorized with a three page document, Environmental Analysis, signed by the District Ranger. Subsequently these analyses grew to 20 pages or more, included every optional treatment imaginable, were published and reviewed by a long list of interested parties, local and regional, and took weeks to complete by a squad sized group of specialists including me. Sale preparation costs skyrocketed. The adjacent County Forest put up sales at one third the cost or less than Forest Service sales. Often the public input reply letters were addressed to me. After repeatedly being called a “biostitute” and not knowing what I was talking about, I quickly lost interest in public relations via the NEPA process in the Forest Service. After a year or so actually going out in the field and observing how the timber was being managed, it became clear to me that diversity of habitat created by these sales was a benefit to many wildlife species, including several wildlife species of particular interest to the public. This National Forest had two large designated Wilderness Areas where NO timber mangement was practiced. These Wilderness areas were different from the managed acres, but no birds for example, were exclusively found in Wilderness Areas that were not also present in the managed areas. This was because the dominate forest type, Mixed Hardwoods (hardwoods mixed in with conifer species), were managed using a selective harvest system. Clearcut areas had wildlife species, and tree species, that normally would be associated with natural burned areas. A reasonable person would see that not only was the public benefiting from the timber harvested and the revenue generated but that, overall wildlife were being benefited as well. When I started, the FS sent more money back to the treasury than was spent by the FS. This is not happening any more obviously. Here is my point. The Forest Service is operating under 10 year Forest Plans that provide general guidance, and restrictions for timber sales. These plans have been thought out carefully and include all considerations for resource protection including the capability of the soils. Endangered species are protected, soil is protected, archeological sites are protected. A 25% increase in timber sales is well within the capabilities of National Forest professionals. Let these people do their job and everybody wins. —Jerry, retired FS
“These plans have been thought out carefully and include all considerations for resource protection”
I like the sentiment that forest plans are important, but I think this point is debatable (and litigable) – especially with the trend towards revised plans having less protection and more discretion.