Jon Haber

NFS Litigation Occasional February 18, 2022

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The last “weekly” we received was January 18, so I’ll try to fill in the gap (but mostly not today)

The Forest Service summaries are here:  Litigation Weekly February 18 2022 Final

Links are to court documents.

 

COURT DECISIONS

Mountain Communities for Fire Safety v. Elliott (9th Cir.) — On February 4, 2022, the 9th Circuit Court of Appeals issued a favorable decision to the Forest Service allowing use of categorial exclusion 6 for thinning of larger commercially viable trees to reduce fire hazard for the Cuddy Valley Project on the Los Padres National Forest.  The court also found the project was consistent with forest plan aesthetic management standards.

Los Padres Forest Watch v. Forest Service (9th Cir.) — On February 4, 2022, the 9th Circuit Court of Appeals issued a mixed decision to the Forest Service regarding the Tecuya Ridge Shaded Fuel-break Project on the Los Padres National Forest.  It ruled that the use of CE-6 was proper but that the Forest had not provided adequate substantiation for its determination that 21-inch diameter trees are “generally small diameter timber” within the project area, as required to meet the exception in the Roadless Area Conservation Rule.  The court also found that the Forest Service was not arbitrary or capricious, based on the rationale it provided, for choosing to locate part of the project outside of the “threat zone” in the Mt. Pinos Community Wildfire Protection Plan.  While there was no violation of ESA, the plaintiffs say the ruling protects 1,100 acres of old-growth forest that is actively used by endangered California condors.

Klamath-Siskiyou Wildlands v. Grantham (E.D. Cal.) — On February 9, 2022, the Eastern District Court of California issued a favorable decision to the Forest Service regarding the Seiad-Horse Risk Reduction Project on the Klamath National Forest.  The court upheld the decision to not prepare an EIS based on effects on connectivity, scenery, recreation and roadless area values.  It found compliance with the Northwest Forest Plan’s snag retention requirements and its Aquatic Conservation Strategy objectives for water quality, sediment, and in-stream flows.  In the latter case, it found that the Forest Service adequately explained how short-term adverse effects would be outweighed by improvements due to riparian planting and large wood placement, and it adequately explained how the impacts would fall with the natural range of variability for water quality, sedimentation, and stream flows.

NEW CASES

New Mexico Cattle Growers’ Association v. Vilsack (D. N.M.) — On February 9, 2022, the plaintiff filed a complaint in the District Court of New Mexico against the Forest Service and Animal and Plant Health Inspection Service for violating numerous requirements in permitting the use of helicopters to shoot feral cattle on the Gila National Forest within the Gila Wilderness.  A temporary restraining order was denied.  At least 67 unbranded cattle have been killed so far.

Cottonwood Environmental Law Center v. Erickson (D. Mont.) — On February 4, 2022, the plaintiff filed a complaint against the Forest Service for violating the National Environmental Policy Act with regard to the effects of the 2022 Revised Custer Gallatin Land Management Plan on the Custer Gallatin National Forest and three “old growth timber sales” in conjunction with climate change.  The Plaintiff specifically objects to failure to consider a 2017 National Academy of Sciences article stating, “when thinning is combined with the expected warming, unintended consequences may ensue, whereby regeneration is compromised and forested areas convert to nonforest.”

OTHER AGENCY CASES

Appalachian Voices v. U.S. DOI (4th Cir.) — On February 3, 2022, the 4th Circuit Court of Appeals held that the U.S. Fish and Wildlife Service had violated the ESA with regard to its biological opinion and Incidental Take Statement for the Mountain Valley Pipeline.  The FWS failed to adequately evaluate the environmental baseline and impacts of climate change on the Roanoke logperch and the candy darter.  (See more on the Mountain Valley Pipeline below)

Cascadia Wildlands v. U.S. Bureau of Land Management (D. Oregon) — On February 8, 2022, the plaintiffs filed a complaint in the District Court of Oregon challenging the U.S. Bureau of Land Management’s authorization of the Archie Creek Fire Salvage Harvest and Hazard Tree Removal Project in late successional reserves in the North Umpqua Watershed in Oregon.  Some additional background is here.

 

BLOGGER’S BONUS

Wild Virginia v. U. S. Forest Service (4th Cir.)

The court decision against the Mountain Valley Pipeline above was the second this year.  On January 25, the Fourth Circuit Court of Appeals found that the Forest Service had violated NEPA and NFMA when it amended the Jefferson National Forest Plan to except this project from 11 forest plan standards (the second time these amendments had been reversed).

With regard to NEPA, the Forest Service did not adequately consider sedimentation and erosion impacts because it failed to address USGS monitoring data on effects of the pipeline outside of the national forest showing water turbidity values that were 20% higher downstream from the Pipeline’s construction than upstream — a significant difference from the 2.1% increase in sedimentation the hydrologic analyses used in the EIS predicted.  It also improperly authorized the use of a conventional bore method of crossing streams that had not yet been evaluated by FERC in their EIS.

The court also found that the amendment violated 2012 Planning Rule requirements that a forest plan “must include . . . components . . . to maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area” (emphasis supplied by the court).  This followed from the failure to adequately assess the impacts of the Pipeline on sedimentation, which is necessary to demonstrate that they would comply with the specific language of the substantive regulatory requirement (rather than a generic conclusory statement).

This article includes a chronology and some maps.

 

 

Forest Planning Update – February 2022

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High Ecological Value Areas (yellow) – Ashley National Forest

 

Sharon just posted the news that the Custer-Gallatin revised forest plan has been released.   Here’s a few other bits and pieces of planning news.

Custer-Gallatin forest plan revision.  Here is a counterpoint:  “We have worked hard, jumped through all their hoops, hoping for a reasonable and sensible plan that will facilitate long-term viability of the forest’s biodiversity. One can also hope to see a Unicorn.” (Is this one of those who “never had any intent of collaborating on anything?”)

Nantahala-Pisgah forest plan revision.  I was pretty sure there was a recent post on this, but I couldn’t find it.  Here’s a counterpoint from the Southern Environmental Law Center:  “There is a lot of consensus on what the forest service says they should be doing and where it should be doing it and if they would operate within that social license, then they could complete that level of timber harvest without creating any problems. They basically declined doing that.”

Sierra and Sequoia forest plan revisions.  The Forest Service released their periodic update on the status of these revisions:  “We have reviewed the more than 7,000 responses we received during the 2019 comment period and have been updating the final revised forest plans and EIS in response to comments received and considering recent large wildfires in the plan area. Release of the final revised forest plans and final EIS for the Sequoia and Sierra National Forests is anticipated later this year.” 

Ashley forest plan revision.  Conservation Science Partners has completed a report for The Pew Charitable Trusts that identifies the relative ecological value of lands outside of protected areas based on a collection of key spatial data sets, including climate resiliency and carbon sequestration.  The comment period for the draft plan and EIS closes February 17.  (The resulting map is shown above.)

Blue Mountains forest plan revision.  The restarted process for the Malheur, Umatilla, and Wallowa-Whitman National Forests is moving again with the submission of new proposed “desired conditions” for the forests to the Blue Mountains Intergovernmental Council. The Forest Service formed the BIC, made up of county officials, tribal members and other stakeholders from the Blue Mountain region, after the agency’s proposed 2018 management plan revision fizzled in the face of intense public scrutiny. The Eastern Oregon Counties Association had listed eight main objections, including economics; access; management area designation; pace and scale of restoration; grazing; fire and salvage logging; coordination between agencies; and wildlife. Craig Trulock, Malheur National Forest supervisor, said he is not sure when the revision process would begin.

Wayne recreation amendment. The Wayne National Forest has adopted a Recreation Amendment to its Forest Plan which takes out direction from the Forest Plan and allows the Forest Supervisor to determine closure dates, allowing biking and horseback trail use to be extended based upon “weather and other factors.”  (I’m in favor of this kind of seasonal criteria being forest plan guidelines due to different conditions year to year, but if there is no longer anything in the forest plan, the public won’t know what those factors are, or how they would be applied.)

 

Oregon legislation to define “climate-smart” forestry?

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I’ve been keeping my eyes open for how anyone is defining the management practices or outcomes that should qualify as contributions to carbon sequestration.  They usually seem to stop short of that level of detail.  This does, too.  However, it sounds like they are going to try to get there.  This is a 1/11/22 draft of LC 240, to be addressed at the legislative session beginning now. We would have an answer “no later than April 30, 2023.”

(2) The Institute for Natural Resources, in coordination with the Oregon Global Warming Commission, shall jointly with the State Forestry Department, the State Department of Agriculture, the Oregon Watershed Enhancement Board, the Department of State Lands and the Department of Land Conservation and Development, and in consultation with federal land management partners, develop:

(b) Recommendations for activity-based impact metrics …

(3) Activity-based metrics must be designed to evaluate progress toward increasing carbon sequestration in natural and working lands and waters, as measured against the 2010 to 2019 carbon sequestration baseline. Activity-based metrics may include, but need not be limited to, acres of lands or waters for which certain management practices have been adopted or acres of lands or waters that represent an increase in natural and working lands and waters.

SECTION 8. (1) As used in this section: (a) “Climate-smart agriculture, forestry and conservation practices” means practices that protect and restore resilient carbon stocks in native ecosystems and increase resilient carbon stocks in vegetation and soils in natural and working lands and waters.

Conservation groups should be able to lease land to protect it

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(I figured this from High Country News originally came from the Property and Environment Research Center, “the home of free market environmentalism,” and I wanted to make that clear.)

In much of the rural West, environmental groups have a reputation for suing to stop natural resource development. But some, like the Wyoming group, are attempting a new strategy: purchasing what they want to protect. The approach, sometimes called conservation leasing, could bolster “30 by 30,” the Biden administration’s ambitious conservation plan to conserve 30% of the nation’s lands and waters by 2030, without ending the leasing revenue that state governments have long derived from resource extraction.

The only problem: It’s often illegal.

These century-old “use it or lose it” requirements were designed to deter speculation and encourage white settlement. But today, they can bias resource management in favor of extraction.

We may have discussed this before, but not in the context of “American the Beautiful.”  (Note: they seem to assume that not all federal lands would automatically qualify, and that at least those committed to energy or grazing would not.)  Why not change the rules to allow non-consumptive/preservation interests to pay to prevent development (for a contractual time period that would count towards 30 x 30) on publicly owned lands?  I suppose a couple of answers are that 1) they shouldn’t have to pay, and 2) that money could be better used for something else.  But would just removing the legal barriers to allow that option to be considered in lieu of energy or grazing for areas where environmental protection is more valuable be that bad of a thing?

NFS Litigation Weekly January 28, 2021

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The Forest Service summaries are here:  Litigation Weekly January 28 2022 Email

The links for each case from the Forest Service are to court documents.

The last “weekly” we received was for December 17, so I’ve attempted to fill in the gap in the “bonus” section with links to whatever I’ve run across.

COURT DECISIONS

On January 19, 2022, the Eastern District Court of California issued a favorable decision to the Forest Service regarding small business share allocations of 44% by the Regional Forester within the Trinity Market Area on the Shasta Trinity National Forest.

OTHER AGENCIES

On January 12, 2022, the Center for Biological Diversity and the Maricopa Audubon Society filed a complaint in the District Court of Arizona against the BLM and the U.S. Fish and Wildlife Service for alleged violation of the Endangered Species Act based on plaintiffs’ monitoring showing livestock grazing would impact listed species and degrade critical habitat on the Horseshoe Allotment within the Agua Fria National Monument.  More in this article (which mistakenly refers to the Forest Service).

 

BLOGGER’S BONUS

On December 8, 2021, a federal court convicted a hunting guide of guiding a bighorn sheep hunt without authorization on the Carson National Forest, and sentenced him to a year and a half of probation and a $7600 fine.

On December 13, 2021 the district court denied a motion by Intervenor-Defendant Idaho State Snowmobile Association to dissolve an injunction imposed on snowmobiling in a “caribou recovery area” on the Idaho Panhandle National Forest imposed in 2007 until a winter travel plan is consulted on and adopted.  Both plaintiffs and the federal government prevailed with their argument that, despite no documented use of the area by caribou in the last decade, it is now designated critical habitat and warrants continued protection under ESA.

On December 13, 2021, the district court reversed and remanded the Stonewall Vegetation Project on the Helena-Lewis and Clark National Forest.  The court found the project violated the NFMA requirement to be consistent with the forest plan because it failed to determine whether road densities were “low level,” as required by a plan standard.  The It also held that the language of the forest plan obligated the project to comply with the species viability requirements of the 1982 planning regulations (which were used under the transition provisions of the 2012 Planning Rule), and the Forest Service failed to demonstrate compliance related to management indicator species.  project also violated ESA because the Forest Service failed to reinitiate consultation on grizzly bears due to concurrent project activities occurring in more than three adjacent grizzly bear subunits.  It upheld the analysis of effects on elk under NEPA.

The project also included an amendment to exempt the project from standards related to elk habitat.  The court found that the EIS failed to consider alternatives or the cumulative impacts of the amendment with other like amendments.  It also held that the language of the forest plan obligated the amendment to comply with the species viability requirements of the 1982 planning regulations (which were used under the transition provisions of the 2012 Planning Rule), and the Forest Service failed to demonstrate compliance related to management indicator species.  Notably, it found that at least ten project-specific amendments to avoid forest plan habitat requirements for elk resulted in a significant change to the plan because, “the rejection of “cover” in favor of “population” is not a minor deviation from the Plan; it is an entirely different approach to elk management.” (More in this article.)

I’m not sure I’ve seen a court find amendments to be a significant change in a forest plan.  However, the holding here is probably less significant than it looks because the Helena-Lewis and Clark National Forest has since revised its forest plan, and it eliminated these standards.  “Montana Wildlife Federation is looking forward to addressing this glaring oversight with the Forest.”

  • Bitterroot Gold Butterfly Project (Follow-up)

The Bitterroot National Forest withdrew its proposed Gold Butterfly Project in November 2020 after being sued by the Friends of the Bitterroot.  On December 17, 2021, the Forest released its second draft Record of Decision for the project.  “The old-growth standards in the 1987 forest plan “were written in a time before there was a standardized way to define old growth,” said Bitterroot Forest Stevensville District Ranger Steve Brown. “They were arbitrary … we have basically adopted the regional standard for defining old growth” in the site-specific supplement for Gold Butterfly.  The Bitterroot Forest is working on a forest-wide plan amendment for defining old growth, which Brown said will probably be completed next year. (They might want to read the Stonewall opinion and think about whether changing the standard for old growth here is “significant” because it really changes how old growth is managed everywhere, and the effects of that need to be evaluated.  Or is it not arbitrary to keep using “arbitrary” standards on the rest of the forest?)

  • BLM geothermal utilization project:  Fallon Paiute-Shoshone Tribe v. U. S. Department of the Interior (D. Nev.) (New lawsuit)

On December 15, 2021, plaintiff Tribe and the Center for Biological Diversity filed a lawsuit (a link to the complaint is included in this article) against a BLM decision authorizing the Dixie Meadows Geothermal Utilization Project, which would consist of two geothermal powerplants, 18 or more geothermal wells, access roads, and 48 miles of transmission line on approximately 2,000 acres of public land in the Dixie Valley in north-central Nevada.  They allege violations of NEPA, FLPMA, and the Religious Freedom Restoration Act with regard to a nearby hot springs and a toad being considered for listing under ESA.  On January 4, the district court enjoined the project, and an appeal has been filed.  The Center for Biodiversity discusses their work in Nevada here.  Another environmental challenge to a renewable energy, 80-megawatt wind turbine facility on private land at Altamont Pass in California, is described here.

  • Mount St. Helens road:  Cascade Forest Conservancy v. U. S. Forest Service (W.D. Wash.)  (Court decision)

On December 22, 2021, the district court upheld a decision by the Gifford Pinchot National Forest to build a road in the Mount St. Helens National Volcanic Monument to replace an old intake gate at the Spirit Lake debris dam that helps protect the downstream communities from flooding.  The court found no NEPA or NFMA violations.  The NFMA issues involved meeting the long-term objectives of the Northwest Forest Plan Aquatic Conservation Strategy, and complying with procedures necessary for a project-specific amendment to allow non-compliance with visual quality requirements.  (More in this article.)

  • Boise Sage Hen Project (New lawsuit)

On December 22, 2021, the Idaho Conservation League filed the second lawsuit against the Sage Hen Project on the Boise National Forest.  As discussed here, the project involves an EA prepared for a long-term, large-scale, condition-based project, and this new complaint also alleges ESA violations concerning bull trout.

  • Flathead Badger-Two Medicine lease (Another lawsuit)

On December 23, 2021, Solenex LLC sued the Interior Department to reinstate an oil and gas lease in the Badger-Two Medicine area of the Flathead National Forest, arguing that the Secretary of Interior exceeded their authority when they cancelled it in 2016.  An appeals court has previously upheld this decision (discussed here).

On December 27, 2021, the district court enjoined the Lang Dam and Hwy 46 projects on the Willamette National Forest.  This looks like the case previously summarized here without a link.

On December 28, 2021, the district court rejected claims by ranchers to ownership of rights to graze on the Apache-Sitgreaves National Forest, and enjoined defendants from grazing cattle there without a permit.  The court found no separate grazing right had been established independent of property ownership, and ownership of water rights does not give rise to a separate right to graze on the allotment.

  • San Juan land exchange (FOIA lawsuit and follow-up)

In October, 2021, Colorado Wild Public Lands sued the San Juan National Forest for failing to provide records of a land exchange requested under the Freedom of Information Act over a year prior.  After receiving the records in December, 2021, plaintiffs requested a delay in approving the land exchange, scheduled for January 21, 2022.  On January 7, 2022, the Forest Service denied this request.

  • Point Reyes National Seashore grazing (Park Service):  Resource Renewal Institute v. National Park Service (N.D. Cal.) (New lawsuit)

On January 10, 2022, the Resource Renewal Institute, Center for Biological Diversity and Western Watersheds Project sued the Park Service over its management of domestic cattle at Point Reyes National Seashore regarding the effects on native Tule elk.  This article includes a link to the complaint.

  • Bison listing:  Buffalo Field Campaign v. Williams (D. D.C.) (court decision)

On January 12, 2021, the district court determined that the U. S. Fish and Wildlife Service failed to comply with the Endangered Species Act requirements for listing species when it decided that the American bison found in Yellowstone National Park do not warrant listing.  Some of the bison spend part of their life on national forest lands.

  • Wolf hunting (new lawsuits)

Lawsuits have been filed in both Idaho and Montana against changes in state wolf-hunting regulations.  The Idaho claims relate to effects on non-target species protected by the Endangered Species Act.  The Montana claims relate to provisions not made available for public comment.

National Forest State Park

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Sweetwater Lake, located in remote northeastern Garfield County in the Flat Tops Wilderness Area, is set to become Colorado’s first state park on federal land after it was acquired by the U.S. Forest Service in August 2021.

“Colorado’s first state park on federal land.”  This came across as an oxymoron, but why not?

This land acquisition followed a common pattern, where a non-profit conservancy (The Conservation Fund) acquired private property until the federal government had the funds (Land and Water Conservation Fund) to purchase it and add it to a national forest (White River).  (From Colorado Parks & Wildlife, linked below.)

This Land and Water Conservation Fund purchase followed the acquisition of the property in 2020 by The Conservation Fund, which was made possible by a loan from Great Outdoors Colorado and local fundraising efforts such as the “Save the Lake” Campaign organized by Eagle Valley Land Trust.

A little less common (to me any way), the Conservation Fund is also continuing to fund management, according the Eagle Valley Land Trust:

“We’re also excited to announce our Sweetwater Lake Stewardship and Equity Fund, which will assist the Eagle Valley Land Trust and our agency partners in activating the property for public use and enhancing opportunities for underserved communities to enjoy the space for years to come.”

There is an existing Forest Service campground on adjacent land.  The Forest Service had this to say in the formal announcement from Governor Polis:

“Sweetwater Lake has tremendous ecological and cultural values and outstanding opportunities for recreation.  This partnership allows the White River National Forest to incorporate the local expertise of the Eagle Valley Land Trust and the recreation management and wildlife expertise of Colorado Parks and Wildlife to best serve visitors to the area,” said Rocky Mountain Regional Forester Frank Beum.

Colorado Parks and Wildlife added:

“Colorado Parks and Wildlife is excited to modernize facilities and provide updated and sustainable recreational services through this partnership. Our main priority is to conserve the unique character of the area while improving access to this incredible property,” said Colorado Parks and Wildlife Director Dan Prenzlow.

None of this said much about the State’s authority and responsibility, but I don’t know why they couldn’t lease the site and manage it as a permittee.  I don’t know if any other states have done anything like this, but as questions continue to come up about how to manage growing outdoor recreation this might be an option in some other places.

Federal Renewable Energy MOU

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USPhoto: Joel Zwink

This article looks like an international take on U. S. renewable energy development and has links to the new MOU among five federal departments (including USDA/Forest Service) and the Energy Policy Act of 2020.  I was going to add this to Sharon’s recent post on renewable energy, but I wanted to highlight the planning implications.

This MOU implements the direction in 43 U.S.C. §§ 3001-3005, Pub. L. No. 116-260 (December 27, 2020), hereinafter “Energy Act of 2020.” Pursuant to the Energy Act of 2020, the Secretary established a National Renewable Energy Coordination Office (National RECO) within BLM Headquarters and five RECOs in the western States with responsibility to implement a program to improve Federal permit coordination for eligible “projects.”

It applies to “relevant aspects of Participating Agency coordination related to supporting activities for eligible projects—such as land use planning …,” which for the Forest Service it defines as “a land management plan approved, amended, or revised under section 6 of the FRRRPA (16 U.S.C. §1604).” (Applying this label to NFMA suggests pretty limited FS involvement.)

It requires a report to Congress identifying “outdated land use plans,” and requires BLM (but not the Forest Service) to “identify land use plans that may need to be amended as part of the decision-making process to consider eligible projects…”  But maybe BLM will identify outdated Forest Service plans.

I hope this right hand of our government (a legacy from the prior administration) is talking to the left hand about where it wants to conserve 30% of the land.

Upcoming public lands regulatory actions

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On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies.  I’ve pulled out the Forest Service and BLM entries below.

This link was provided in this blog post focused primarily on the Endangered Species Act and “the regulated community” (and on undoing Trump administration regulatory changes).  The one individual species proposal that may affect (eastern) national forests concerns the northern long-eared bat, and possible critical habitat designation (it is currently listed as threatened).  It also notes proposed rules by the Council on Environmental Quality revising National Environmental Policy Act implementing regulations (targeting climate change).

USDA/FSProposed Rule StageSpecial Uses–Cost Recovery0596-AD35
USDA/FSProposed Rule StageCommunications Uses–Programmatic Administrative Fee0596-AD44
USDA/FSProposed Rule StageLaw Enforcement; Orders; Enforcement of Public Health and Safety Measures0596-AD50
USDA/FSProposed Rule StageAlaska Roadless Rule Revision0596-AD51
USDA/FSProposed Rule StageChattooga Wild and Scenic River0596-AD52
USDA/FSProposed Rule StageWeeks Act Reviews0596-AD53
USDA/FSFinal Rule StageRange Management–Excess Use/Unauthorized Use0596-AD45
DOI/BLMProposed Rule StageRights-of-Way for Communications Including Broadband1004-AE60
DOI/BLMProposed Rule StageBonding1004-AE68
DOI/BLMProposed Rule StageRights-of-Way, Leasing and Operations for Renewable Energy and Transmission Lines1004-AE78
DOI/BLMProposed Rule StageWaste Prevention, Production Subject to Royalties, and Resource Conservation1004-AE79
DOI/BLMProposed Rule StageRevision of Existing Regulations Pertaining to Fossil Fuel Leases and Leasing Process 43 CFR Parts 3100 and 34001004-AE80
DOI/BLMProposed Rule StagePart 4100-Grazing Administration-Exclusive of Alaska1004-AE82
DOI/BLMProposed Rule StageRegulations for the Protection, Management, and Control of Wild Horses and Burros1004-AE83
DOI/BLMProposed Rule StageRegulations Pertaining to Leasing and Operations for Geothermal1004-AE84
DOI/BLMFinal Rule StageMinerals Management: Adjustment of Cost Recovery Fees1004-AE81
DOI/BLMFinal Rule StageOnshore Oil and Gas Operations-Annual Civil Penalties Inflation Adjustments1004-AE85

The New BLM

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Since we spent some time talking about the old BLM, and then its new Director, I thought it worth sharing this interview with Tracy Stone-Manning by Lee Newspapers.  It’s too bad, though, that there wasn’t a question about what she thought about the Forest Service and interagency coordination.  Some key policy points …

As of today, Stone-Manning has a pretty large to-do list: Reform BLM’s oil and gas leasing system and achieve the agency’s energy mission largely through the use of renewables. Promulgate new rules governing grazing leases that are fair and good for the landscape. Ensure that recreationists will still be able to find beauty, quiet and solitude.  In short, she says, manage not for process but for outcome — leaving both the agency and the vast land it manages in better shape than they were when she started.

“I think people saw that confirmation process for what it is, a sign of our times. I’ve had nothing but a warm welcome here at the agency. People are relieved to have a confirmed director and they are ready to go.”

“The last Administration said it had an energy-dominant agenda for public lands. We need to get back to our true calling, under the law, of being a multiple-use agency. Addressing conservation and climate change is part of that multiple use.”

“The priority is already shifted to renewable energy development. I want to be able to prove up on that, to show we can power this country well with renewable energy. And as for the development that is continuing as a result of existing rights, I want to ensure that those doing the developing are paying their fair share for resources that come out of the ground that we all own together, and ensure that the siting is responsibly done.”

“Climate change isn’t blue or red, it’s affecting us all in the West. Every Montanan breathed wildfire smoke last summer. Every rancher is seeing impacts of drought on the landscape. One thing that typically unites Americans is that we solve problems. My focus is going to be consistently on trying to solve problems with people who are willing to come to the table to work on them. The only way through the polarization is to be frank and transparent and not to step into the fray but to acknowledge it.”

“We are going to come forward with a draft grazing rule… “We’re in the midst of what some people call a megadrought and others call the new normal. We have to figure out how to manage for the health of the landscape. In many cases cows can help us do that if we’re really smart about how we use the tool that we call grazing. Outcome-based grazing is the new effort at the agency. The thought behind it is exactly where we need to go: Determine the outcome we’re looking for on the landscape and graze accordingly.

I think it’s safe to assume that same “outcome-based” strategy would apply to its forest management program as well, which should align with what the Forest Service has said it is doing.  She added this other interesting comment, in response to a question about a proposal to graze bison on BLM lands in Montana.

“Our job is to manage for the health of landscape and implement the law. We’re certainly aware of the sensitivities of that cultural question. But that’s what it is, a cultural question. We don’t manage culture, we manage landscape outcomes.”

Some litigation and other loose ends from November-December 2021

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A holiday gift?  Header links are to news articles.

(New case.)  In a December 7 lawsuit against the U.S. Department of Labor, a group of Colorado river guides claim the federal government has arbitrarily imposed a $15 minimum wage on the outdoor industry, rendering extended tours through public lands less attainable.  The article includes a link to the complaint.

(New case.)  On November 29, the Center for Biological Diversity sued the U. S. Fish and Wildlife Service over a Trump administration rule that expanded hunting on national wildlife refuges when it determined that listed species found in or near the refuges would not be adversely affected by the expansion.  Species mentioned the grizzly bear, jaguar, ocelot, jaguarundi, Audubon’s crested caracara, wood stork, and whooping crane.  The article includes a link to the complaint.

(Update.)  The U.S. Fish and Wildlife Service and multiple conservation groups reached an agreement to conduct a new Endangered Species Act status review of California spotted owls by Feb. 25, 2023. The stipulated settlement stems from a suit the Center for Biological Diversity and other groups filed against the Trump administration in 2020 for not adding the spotted owl to the list of endangered species.

(Follow-up.)  A proposal to add the Pearl River map turtle to the federal endangered species list was published on November 23 by the U.S. Fish and Wildlife Service after two environmental groups sued the agency last year for missing the determination deadline by a decade.  The proposed listing (the article contains a link) mentions the Bienville National Forest in Mississippi favorably.

The U.S. Fish and Wildlife Service (Service) published a final rule revising the critical habitat designation for the northern spotted owl.  The final rule rescinds a previous rule issued by the Trump Administration on January 15, 2021, which would have excluded approximately 3.4 million acres from the species’ critical habitat designation.  We talked more generally about critical habitat and spotted owls here.  Related litigation was discussed here.

Oregon Democratic Sens. Jeff Merkley and Ron Wyden announced legislation to establish a new national monument in central Oregon on BLM lands.  According to Merkley’s press release, the proposal has the support of several conservation groups as well as the city of Mitchell, which has seen economic benefits from Painted Hills tourism and visiting cyclists.

The Rio Grande National Forest announced the inclusion of an administrative change in its revised  forest plan. The change addressed recently acquired lands that were not included in the Rio Grande National Forest’s land base when the plan was revised.

The 2012 Planning Rule allows administrative changes for “corrections of clerical errors to any part of the plan, conformance of the plan to new statutory or regulatory requirements, or changes to other content in the plan (§219.7(f)).”  Hmmm.