Supreme Court Hears Echo from Bitterroot Clearcut/Terracing Controversy

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.

Can’t Take a Joke

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.).

Region 5 asks for (and gets) NEPA “emergency” exemption

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.

So What About Those “Historic” 2020 Fires?

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.

Chief Blames “Climate Change” for New Mexico Prescribed Burn that Got Away

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.

Biden to Bail Out South Dakota Sawmills with California Logs

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.

What’s that in barns?

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.

Are Trees Deadly? A Photo Essay

Over the past 2 years I took these pictures while bicycling and hiking in Oregon’s national forests.

Cycling a Siuslaw National Forest gravel road — note the many down, green branches, which could have killed or injured me had I been underneath when they fell.

Downed trees littered the road, too. Lucky to have escaped unscathed!

I barely avoided this killer on the Deschutes National Forest last spring. Phew!

The Forest Service wants to log these dead trees because they threaten the visiting public along this highly used recreation road.

Although this decade-old landslide blocks visitor use, the Forest Service wants to log the dead trees (shown in the previous pic) beyond the slide because they are “hazardous.”

Forest Service “hazard tree specialist” said this big snag would have to come down because it is too dangerous. The FS never thought the snag dangerous enough to remove before a 2020 fire burned neighboring trees.

This one is sure to kill the unwary. Oops, this dead tree isn’t in a national forest at all. It threatens hikers along Eugene’s Ridgeline Trail, probably the most visited trail system in Lane County. The Ridgeline Trail has hundreds of recently-killed (drought) Douglas-fir trees within striking distance of the trail. Occasionally, they fall, sometimes across the trail. No one has died. No one is prophylactically cutting them down. Life goes on. Ho hum.

Timber Industry Hoodwinks Forest Service — Again

This is a graph of lumber value (click to enlarge). The recent low point for lumber was in April, 2020. Remember that date, we’ll come back to it below.

Now see what lumber has done since April of last year. Quadrupled in price by early 2021! That’s a lot of gelt for some lucky mills.

The luckiest of those mills are the ones that had Forest Service timber contracts expiring in April 2020. Why lucky? Because on April 10, 2020, the Undersecretary of Agriculture issued a two-year extension on the performance of those contracts. See what happened? Those purchasers quadrupled their earnings!

In my 40-year experience, Forest Service planners and economists have a perfect track record in predicting the future — they are always wrong.

Cut Them All Down


Over the weekend in Portland, Oregon, a 14-year-old volunteer with Friends of Trees was killed by a falling branch while planting seedlings in the Forest Service’s Sandy River Delta, a part of the Columbia River Gorge National Scenic Area.

The tragedy and the irony of this loss struck me hard. At a time when the U.S. Forest Service’s post-fire “hazard tree” logging is breaking the law up-and-down the Pacific Coast, what lessons should the Forest Service learn from this tragic event? Last month, for example, the Forest Service argued in court that because one “charred tree” took the life of an ATV rider in a Montana national forest, the risk associated with dead trees near roads warrants cutting them all down in Oregon’s Willamette National Forest. By that logic, the weekend’s Columbia River Gorge tragedy would counsel for cutting down all trees everywhere.

In this pandemic era, evaluating health and safety risk has become a political football (sorry, Green Bay fans). Republican governors have won a temporary injunction against the federal Nanny State’s imposition of vaccine mandates on large employers. Accusations and counter-accusations of COVID-19 misinformation have proliferated around the globe, many as “efforts to shape political debate.”

The Forest Service is not immune from the temptation to use health and safety misinformation to shape political debate. According to Dr. Travis Heggie, a world-class expert in backcountry safety (and former National Park Service Public Risk Management Specialist and Tort Claims Officer), the risk of being killed by a falling tree (whether dead or alive) while visiting national forests is minuscule. Yet, you wouldn’t know it from the Forest Service’s hyper-ventilative rhetoric around “hazardous” trees.

So before you venture out into the woods this weekend, consider these facts:

1) Falls while hiking or climbing are the leading cause of backcountry deaths (40%). Avalanches account for 15%, drowning incidents account for 10%, and heart attacks account for 10%. Deaths by tree fall account for 1% — same as deaths by bear attack.

2) You are much more likely to die where you live than while visiting our federal public lands. The National Park Service’s human mortality rate is 0.1 deaths per 100,000 recreational visits. This is much lower than the mortality rate of the overall U.S. population (844 deaths/100,000 people).

3) Trees do kill a substantial number of urban and highway road users – about 7,000 per year. Not as a result of trees falling on drivers, but because drunk/young drivers careen off roads into standing trees.

If you’re mature, as am I, use a hiking pole to prevent falling and to help clamber over down trees on and off trails. Don’t drive to the woods drunk nor swim or boat while intoxicated. Hang your food if camping in bear country. Most of all, enjoy our national forests, if the Forest Service is kind enough to let you in.