andystahl

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.

“After the great fires in London in 1666 and Chicago in 1871, building codes started addressing the risks one building posed to adjacent buildings and the public,” from a nice summary of building codes history in Mother Earth News.

How many “great fires” will it take before we wise up to the fact that cooperation isn’t sufficient to protect communities from fires that ignite out-of-doors? As was the case with building codes, the insurance industry is taking the lead. But not by constructively developing model Firewise codes (e.g., for vegetation management and home design that resists exterior ignition) and urging state and local governments to adopt them. Instead, the insurance industry is taking a hike, refusing to underwrite homes in potential high-loss areas. In response, state and local governments are either coercing the insurance industry to underwrite or subsidizing insurance for the newly uninsured. Neither tactic addresses the underlying problem.

Unless and until governments adopt enforceable Firewise regulations to protect against catastrophic community loss, we will continue to suffer catastrophic community losses.

Hawaii has several Firewise websites that seek to educate homeowners about best practices. The state has also written fire mitigation plans and developed fire risk maps. Notwithstanding these planning efforts, Lahaina was obliterated by a wind-driven wildfire. The catastrophe is likely to exceed 100 fatalities and cost billions to rebuild the town.

A series of vegetation-related events set the stage for this catastrophe. First was the 20th-century elimination of the native fire-resistant forest vegetation by pineapple and sugar cane plantations. Next was the abandonment of those plantations and their replacement by invasive grasses. Add in terrain-driven high winds common to parts of Hawaii plus seasonal drought and all that was missing was an ignition source, which has yet to be determined, but, once again, wind-downed power lines may prove to be the culprit.

After I made these observations last week on a firefighter’s website, which got me banned from the site (🤣), Sharon suggested I re-visit the topic here.

In my original comment on the firefighter site, I noted that Hawaii has no “Firewise-type program.” The firefighter blog’s owner responded to me with links to Firewise information websites. Although helpful, I explained to her that information is not a “program” that will move the needle at a community-wide level. Moving the needle requires enforceable building and vegetation codes, zoning, and ordinances, as I explained in a subsequent comment before being censored.

If it is to be effective, “Firewise” must be more than putting information on a website, doing analyses, drawing maps, and formulating plans. Firewise must also include on-the-ground actions. In Maui, that would have included replacing the invasive weeds with native species plantings. In their abandoned status, these former plantation lands are a time bomb — a deadly nuisance — that tragically blew up, as knowledgeable folks had warned for years. In other words, but for the invasive grasses, this tragedy would likely not have happened. Government is in the best position to require the former pineapple and sugar cane plantation owners to abate this nuisance. Unless and until that happens, the Lahaina tragedy will repeat itself elsewhere.

Mitigating the invasive grass threat would also have been much less expensive than wholesale Firewise refurbishment of Lahaina’s existing housing stock. Now, of course, Lahaina has the opportunity to replace its housing fire-wisely, with, one hopes, new and enforced building codes and zoning.

The visual legacy of the Bitterroot’s terracing in Robbins Gulch can still be seen by satellite (click on image for full-size).

Tomorrow the U.S. Supreme Court hears oral argument in a property rights dispute between the Forest Service, which owns an easement through plaintiffs’ private property. Although the legal issue (how should courts treat the Quiet Title Act’s statute-of-limitations?) is arcane, it is the historic nature of the easement that intrigues me.

In 1962, the predecessor property owners conveyed to the United States a 60-foot road easement that plaintiffs assert is “for timber harvest” purposes only. In 2006, the Forest Service allegedly expanded the easement to include general public access by posting a sign to that effect, leading to trespassing on plaintiffs’ private property, “theft of their personal property, people shooting at their houses, people hunting both on and off the easement, and people traveling at dangerous speeds on and around Robbins Gulch Road.”

However, it is the Forest Service’s timber harvest accessed by the Robbins Gulch Road that has the more storied history. This was one of the places where the Forest Service terraced hillsides to encourage regeneration following clearcut logging. This controversial practice helped catalyze passage of the National Forest Management Act, the echoes of which continue to reverberate.

Today’s under-the-fold news reported on an amicus brief the Onion filed urging the U.S. Supreme Court to protect smart-alecks from state-sanctioned bullies. When a not-very-funny parody of Parma, Ohio’s police department appeared on Facebook, self-righteous cops brought the full force of the state to bear against the perp. Armed with search warrants issued by an equally clueless municipal judge, the city’s finest raided the comic’s house, confiscating his and his roommate’s computers, cell phones, and, horrors, even the gaming console! The SWAT team tossed the miscreant into jail for four days, charged him with the crime of disrupting public services using a computer, prosecuted, and, wait for it . . . LOST when the jury found him innocent (the good citizens of Parma prevail).

After the victim recovered from eating Ohio jail food, he sued the city for violating his First Amendment rights. A Sixth Circuit Trump/Trump/Bush panel dismissed the case on the grounds that “qualified immunity” protects even the dumbest jackbooted thugs from accountability. Now the Supreme Court is being asked to weigh in.

This reminds me of my favorite U.S. Forest Service story of idiotic can’t-take-a-joke overreach. In 1992, during the height of the Timber Wars, the “Environmental Air Force” — Lighthawk — purchased newspaper ads showing Smokey Bear with a chainsaw behind his back and the tag-line “Say it Ain’t So, Smokey.”

The Timber/Fire Service was not amused. Forest Service Chief Dale Robertson threatened to sue Lighthawk for unauthorized use of Smokey’s image and name. Feeling its speech chilled, Lighthawk sued first (anyone who knew Dale should not have felt threatened — his bark was mild and his bite non-existent).

Proving that no judge is above punning when given half a shot, Judge Dimmick concluded:

By ruling that the 16 U.S.C. § 580p-4(a) and 36 C.F.R. § 271.3 are unconstitutional as applied to LightHawk the Court by no means intends to create an open season on Smokey Bear. While the question is not before the Court the government can likely regulate commercial uses of Smokey Bear as allowed by USOC. Those portions of the regulatory scheme addressing solely commercial uses remain intact. However, the statute and regulation, which impose content based restrictions on non-commercial uses, cannot be applied to LightHawk’s purely expressive political speech.

Lighthawk, The Environmental Air Force v. F. Dale Robertson, 812 F. Supp. 1095 (1993 W.D. Wash.).

After fires in 2020 and 2021, the Forest Service’s California region bit off more than it could chew when it proposed to log “hazard” (sic) trees along 5,800 miles of forest roads. Now the regional office has asked the Chief for an emergency exemption from NEPA review for 167 miles of its roadside logging. Why? “Because “project planning and Endangered Species Act (ESA) consultation is taking longer than anticipated.” The Chief granted the exemption yesterday.

Who could have known that the Forest Service’s largest logging project in its history might take “longer than anticipated?”

PS: The FS claims these fire-affected trees are “hazardous” because “within the last 10 years, the Forest Service has documented 69 claims against the government of property damage, 11 injuries, and four fatalities in the western regions associated with falling trees/limbs.” There’s no evidence that these damage claims are associated with fire-affected or dead trees. Most tree-related injuries result from live, green trees falling. That’s because most trees that fall are live and green when they keel over.

Today’s in-box brought me, courtesy of firescience.gov, a new report “Cascadia burning: The historic, but not historically unprecedented, 2020 wildfires in the Pacific Northwest,” authored by researchers at my alma mater (Beaver Nation), Washington DNR, U. of Dub, and the Fire Service.

Highlights

The 2020 Labor Day Fires were much larger and more severe than others in the recent record, but they were remarkably consistent with many historical fires. Strong east winds and dry conditions are the common denominators in both large historical fires of the past and the 2020 fires.

Forest management and fuel treatments are unlikely to influence fire severity in the most extreme wind-driven fires, like the 2020 Labor Day Fires. Pre-fire forest structure, largely the result of previous forest management activities, had little effect on burn severity when east winds were strong during the 2020 fires.

Fuel treatments around homes and infrastructure may still be beneficial under low and moderate fire-weather conditions.

Adaptation strategies for similar fires in the future in west-side communities might, instead, focus on ignition prevention, fire suppression, and community preparedness.

In its report on the New Mexico prescribed burn that got away several hours after ignition to burn 341,471 acres so far, the Chief places the blame on climate change: “Climate change is leading to conditions on the ground we have never encountered.” Washington Post commenters aren’t buying it.

1) Loosely translated, some USFS employees screwed up badly by ignoring the weather reports, and are using climate change to cover their mistake.

2) All lies and a coverup. Any first grader in New Mexico can tell you not to light a fire in the spring. The Forest Service operates under a blind and arrogant determination to set fires at any cost.

3) This actually isn’t a climate change issue. This is actually an issue of outright negligence! The Forest Service in New Mexico ignited a controlled burn on a week with red flag days, and strong winds that were gusting to gale force. That’s actually very normal weather for the higher elevation areas in New Mexico at the time those controlled burns were started. If this isn’t an example of outright negligence by the Forest Service, then I don’t know what is! “Climate change” is just a dodge that is a pile of cow crap a mile high!

4) This is BS. Who is running the agency? Larry, Moe, and Curly? The day I heard about the prescribed burn, I thought this is a terrible day to start a fire. It was windy as all get out in Santa Fe. And it is just about always less windy in the city than NE in the higher elevations (where they fires were started). At that time we had experienced no significant rain since last summer and little snow in the last two winters.

From an E&E News article (behind paywall) today: “The Forest Service is working out the final details of a plan to keep South Dakota timber mills open by supplying logs from other areas, agency Chief Randy Moore said.” The “other areas” may include California, which is concurrently proposing the largest logging projects in state history.

Back in the good old days, the Forest Service sold timber to the highest bidder. Exceptions to that rule included a small handful of Sustained Yield Units. These were anti-competitive, protectionist measures designed to ensure that timber was milled locally. Now the Forest Service wants to do precisely the opposite — require that timber be milled far distant from the area in which it grows.

How many tax dollars will be spent on this boondoggle? This administration won’t care; in fact, I doubt it even asked the question. With hundreds of millions sloshing around in the FS’s budget accounts there’s enough to finance any crazy idea.

In other news, the “biggest” of three fires in Alaska has burned “about 0.06 square mile,” according to the Associated Press (quoting Alaska Division of Forestry spokesperson Sam Harrel). The two smaller fires have burned one and five acres, respectively.

For the numerically challenged, 0.06 of a square mile = 38.4 acres.

PS: A “barn” is a unit of area equal to 10⁻²⁸m². You’re welcome.