Jon Haber

How to get rid of non-native fish in wilderness

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Utah Division of Wildlife

Since we had such fun discussing use of chainsaws in wilderness and eliminating wolves from wilderness, here’s another example of challenges to managing under the Wilderness Act. The Lolo National Forest is seeking comments on the North Fork Blackfoot River Native Fish Restoration Project which is located in the Scapegoat Wilderness.  They have prepared an Environmental Assessment.

The project would authorize Montana Fish, Wildlife & Parks (FWP) to implement fish management and stocking actions within the wilderness that would establish a secure population of native trout, replacing an existing hybrid population.

To restore and secure this population, the project proposes the following actions; application of a piscicide, rotenone, to eradicate the non-native fish species; use of motorized equipment such as a boat motor, generator, and a helicopter to transport equipment, supplies, and fish for stocking; temporary development of structures or installations; and use of chemicals (pesticides or herbicides). Additionally, public access in the area would be closed for 7-10 days during the late summer of 2021 to reduce user conflicts with management actions.

The Forest Service has assessed the suitability of the proposed activities in the Scapegoat Wilderness through a process called a “minimum requirements analysis.” This is a process used to identify, analyze, and recommend management actions that are the minimum necessary for wilderness administration, as directed by the Wilderness Act of 1964.

From the linked article:

Opponents challenged the plan’s use of motorized equipment in a federal wilderness area where such machinery is typically prohibited, the idea of stocking otherwise fishless waters in wilderness, use of fish poison and the potential of harming non-target fish in the area.

There doesn’t seem to be much disagreement with the project purpose, but resistance to how they would do it.  The exception where “mechanical transport” and “structure or installation” would be allowed by the Wilderness Act is:  “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act.”  It seems like their argument that they need motorized access is weak (see photo), but if chemicals are the only way to remove the non-native species, should they not do it?

Then there is the requirement to maintain viable populations of native species on national forests, which might for some species (maybe amphibians that evolved without fish predators) require them to do it.

 

“Tracking Biden’s environmental actions”

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The Washington Post has put together a “scorecard” for “environmental actions” to be taken by the Biden Administration to reverse over 200 Trump policies in seven categories, sorted by how hard they would be to overturn.  Those marked by dark orange are already “overturned,” those in lighter orange are “targeted,” and the rest “not yet targeted.”  Overall, 8 have been overturned, 60 have been targeted, and 139 are not yet targeted.  Here’s the categories and total amounts.

Air pollution and greenhouse gases (64)

Chemical safety (14)

Drilling and extraction (61)

Infrastructure and permitting (26)

Transparency (2)

Water pollution (13)

Wildlife (27)

Public land management may be affected by actions in several of these categories, but “Drilling and extraction” includes logging, so I’ve copied some of that list above.  Among the priority actions (overturned or targeted) include Utah national monuments, timber harvesting on BLM lands, the protest process for federal timber sales, the Tongass roadless rule, and fracking rules.  Also, in the “wildlife” category, ESA critical habitat designation, spotted owl critical habitat and Endangered Species Act consultation have been targeted.   Not yet targeted include many things we have discussed on this blog, such as:  the Eastside Screens old growth plan amendment, the executive order encouraging logging on federal lands, sage grouse protection, Twin Metals mine leases near Boundary Waters, the Tonto NF copper mine, Forest Service NEPA regulations, and CEQ NEPA regulations.  It’s also interesting to note the number of these that are “under litigation,” which may also provide leverage to undo Trump actions.

I hope this is something they will continue to update with successes and failures and new targetings.

Forest Management Direction for Large Diameter Trees in Eastern Oregon and Southeastern Washington

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One of the many things that went into the Trump dump the last couple of weeks was the amendment of the Forest Service Eastside Screens old growth protection standard:  “Forest Management Direction for Large Diameter Trees in Eastern Oregon and Southeastern Washington.”    We discussed that at length here.  The Forest Service documentation for the amendment is here. The standard prohibiting harvest of trees >21” dbh has been replaced by this guideline (“LOS” is late and old structure, and it refers to “multi-stratum with large trees” and “single-stratum with large trees”):

Outside of LOS, many types of timber sale activities are allowed. The intent is still to maintain and/or enhance a diverse array of LOS conditions in stands subject to timber harvest as much as possible, by adhering to the following plan components: Managers should retain and generally emphasize recruitment of old trees and large trees, including clumps of old trees. Management activities should first prioritize old trees for retention and recruitment. If there are not enough old trees to develop LOS conditions, large trees should be retained, favoring fire tolerant species where appropriate. Old trees are defined as having external morphological characteristics that suggest an age ≥ 150 years. Large trees are defined as grand fir or white fir ≥ 30 inches dbh or trees of any other species ≥ 21 inches dbh. Old and large trees will be identified through best available science. Management activities should consider appropriate species composition for biophysical environment, topographical position, stand density, historical diameter distributions, and Adapting the Wildlife Standard of the Eastside Screens 5 spatial arrangements within stands and across the landscape in order to develop stands that are resistant and resilient to disturbance.

The proper way to read a guideline is that its purpose is a standard: “Managers must maintain and/or enhance a diverse array of LOS conditions in stands subject to timber harvest as much as possible.”  It’s not clear to me how you maintain LOS “outside of LOS,” so maybe only “enhance” is applicable, but even that term assumes what you are enhancing is already there to a degree.  This is also weakened by the qualifier “as much as possible.”  This could be interpreted to allow timber harvest even if enhancing LOS conditions is not possible.

The rest of the boldface language should be interpreted as actions that would always be allowed because they would always promote the LOS purpose.  This means that a decision to NOT retain all old and large trees could only be made if it is demonstrated that LOS is enhanced.  “Generally emphasize” allows probably unlimited discretion regarding recruitment.  A decision to NOT prioritize old trees (i.e. to log any old tree before logging large trees) could also only be made if it is demonstrated that LOS is enhanced.  This could be reasonably effective, but it puts a significant burden on project analysis and documentation to deviate from the terms of the guideline.  This is as it should be.  The last part of the guideline lists things that “should be considered,” which shouldn’t be given much weight.

There are also changes in standards and guidelines for snags, green tree replacement and down logs.

The last part of the “decision” is to adopt an “Adaptive Management Strategy.”  This strategy proposes monitoring and thresholds intended to trigger additional restrictions on large tree removal:

  1. If large trees are not increasing in number with appropriate composition, the Regional Forester will impose the Age Standard Alternative across the whole analysis area or by national forest or potential vegetation zone.

  2. If effectiveness monitoring does not occur, the Regional Forester will impose the Age Standard Alternative across all six national forests.

However, under the Planning Rule, these are not plan components and are not mandatory.  While there are “requirements” for regional forester review every five years, this is not a plan component either.  Since none of this “strategy” is enforceable it is of much less benefit than if it had been included as plan components like standards.

(For those interested in how the “natural range of variation” (NRV) is used in forest planning, there is a desired condition for the amounts of LOS in different habitat groups and it is based on NRV.  These new amendments leave in place the desired conditions for LOS previously determined in accordance with the original amendments in 1995.   An appendix in the decision notice includes a “Table 3” that is “only an example” of NRV because, “The number and kind of biophysical environments and the historic and current distribution of structural conditions vary by landscape.”  In order to fully understand the effects of this amendment on a particular landscape, we would need to see the definitions of LOS and actual desired conditions for LOS incorporated into a plan for that landscape.  I didn’t find them in or see them referred to in the amendment documentation, I suppose because they are not changing).

 

NFS Litigation Weekly January 08, 2021

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The Forest Service summary is here:  Litigation Weekly January 08 2021 Email

The bullets here include links to court documents.

COURT DECISIONS

Cottonwood Environmental Law Center, v. Bernhardt (D. Montana) – On December 10, 2020, the District Court of Montana issued an order that directed the Department of Interior, National Park Service, and Forest Service to conduct an additional NEPA analysis of the Interagency Bison Management Plan for bison leaving Yellowstone National Park.

(Blogger’s note:  This plan and management of bison on the Custer-Gallatin National Forest has also been an issue during its forest plan revision.)

Western Watersheds Project v. USDA APHIS (D. Idaho.) – On December 11, 2020, the District Court of Idaho granted Animal and Plant Health Inspection Service’s request to dismiss the case against APHIS for failure to sufficiently analyze the environmental impacts of their predator control activities in Idaho and the operation of the Pocatello Supply Depot.

(Blogger’s note:  While the alleged actions of APHIS were not reviewable, there were also claims against the BLM and Forest Service, which authorized APHIS’s aerial gunning of coyotes and other wildlife on federal lands.  The summary does not mention the disposition of those claims or whether they remain pending.)

Cottonwood Law Center, v. Marten, et al. (D. Mont.) – On December 17, 2020, the District Court of Montana granted the Agency’s Motion to Dismiss regarding new information pertaining to the 1987 Custer Gallatin National Forest Plan and the Bozeman Municipal Watershed, North Hebgen, North Bridgers Projects on the Custer-Gallatin National Forest.

(Blogger’s note:  One of the claims rejected was that the announcement of forest plan revision constitutes new information that should be considered pursuant to NEPA with regard to the existing forest plan or proposed or ongoing projects.)

WildEarth Guardians v. U.S. Forest Service (D. Idaho) – On December 23, 2020, the District Court in Idaho denied the Forest Service motion to dismiss the case’s remaining claim for reinitiating consultation based on take of grizzly bear resulting from black bear baiting for hunting in national forests in Idaho and Wyoming.

NEW CASES

Alliance for the Wild Rockies v. Marten (D. Mont.) – On December 11, 2020, AWR and Native Ecosystems Council filed a complaint in the District Court of Montana against the Forest Service and the U.S. Fish and Wildlife Service challenging the Stonewall Vegetation Project and Forest Plan Amendment #35 on the Helena-Lewis and Clark National Forest.  The plaintiffs’ claims relate to new information, including effects of the Park Creek Fire that affected the project area (which was discussed here).  (More on the plaintiffs’ perspective, especially on elk, may be found here.)

(Blogger’s note:  With regard to this project-specific amendment, plaintiffs challenge the “practice of issuing successive site specific amendments to evade the analysis of what is actually a significant Forest Plan amendment.”  While this issue of “cumulative amendments” has been raised under the 1982 planning regulations (unsuccessfully, as I remember it), under the (amended) 2012 Planning Rule a “significant amendment” under NFMA is now one that requires preparation of an EIS, which was the case for this project – “except for an amendment that applies only to one project or activity.”  And the 2012 Planning Rule adds no “analysis” requirements for such amendments, though NFMA may.)

Blue Mountain Biodiversity Project v. Shane Jeffries (D. Or.) – On December 11, 2020, the plaintiff filed a complaint in the District Court of Oregon against the Forest Service, concerning the Walton Lake Restoration Project on the Ochoco National Forest and associated project-specific amendment to the forest plan.  This project was previously enjoined but the contract for logging has remained in effect.  (More about the area and the project may be found here.)

(Blogger’s note:  This complaint also alleges that the project-specific amendment is significant under NFMA.  In contrast to the Stonewall project above, an EIS was not prepared here.  Under the agency Directives for the 1982 planning regulations there were criteria that determined an amendment’s significance, but those no longer exist.  Now the only criterion in the Planning Rule is the existence of significant environmental impacts requiring preparation of an EIS.)

Alliance for the Wild Rockies v. U.S. Forest Service (E.D. Idaho.) – On December 16, 2020, AWR, Yellowstone to Uintas Connection and Native Ecosystems Council filed a complaint in the Eastern District Court of Idaho against the Middle Henrys Aspen Enhancement Project on the Caribou-Targhee National Forest, which used the categorical exclusion for timber stand and wildlife habitat improvement.  It includes claims of failure to comply with the forest plan.

In addition, plaintiffs filed a notice of intent to sue the Forest Service and Fish and Wildlife Service under ESA, dated December 14, 2021.  Issues include the need to reinitiate consultation on the forest plan because grizzly bears are newly present in the area.  (This article provides plaintiffs’ perspectives.)

Organized Village of Kake v. Perdue (D. Alaska) – On December 23, 2020, five Alaska native tribes, small businesses, and more than a dozen conservation organizations filed a complaint in the District Court of Alaska against the Department of Agriculture and the Forest Service concerning the 2020 Exception that exempts the Tongass National Forest from the Roadless Area Conservation Rule.  (We have discussed this several times, including recently here, and more background is provided in this article.

NOTICE OF INTENT

  • Middle Henrys Project (see above)

 

The Forest Service, BLM and U.S. Fish and Wildlife Service received a 60 Day Notice of Intent to Sue, dated December 22, 2020 from the Alliance for the Wild Rockies and Native Ecosystems Council pursuant to the Endangered Species Act regarding the Castle Mountain Project on the Helena Lewis & Clark National Forest and its effects on whitebark pine.

(Blogger’s note:  Whitebark pine was proposed for listing as a threatened species on December 2, 2020.  The news release from the Fish and Wildlife Service is here, and states, “White pine blister rust, a non-native fungal disease, is harming native whitebark pine trees across the American West. Mountain pine beetles, altered wildfire patterns, and climate change are all negatively affecting the species’ health.”)

 

BLOGGER’S BONUS (links are to news articles)

(Update.)  This litigation concerns the Bridger-Teton National Forest’s decision to reauthorize cattle grazing on 170,000 acres of the Upper Green and Gros Ventre rivers, for which the U. S. Fish and Wildlife Service approved incidental take of up to 72 grizzly bears over the following decade, as we discussed here.  The District of Columbia district court granted intervenors’ request to transfer the case to the district court in Wyoming, saying, “this case is decidedly a more local controversy than a national one.”

(Court decision.)  In its 2014 petition, the Center for Biological Diversity asked the U.S. Fish and Wildlife Service to update its recovery plan and add several new areas of historic grizzly bear range as potential recovery areas. In a 2011 status review, the wildlife service had said areas in Colorado, New Mexico, Arizona, Utah, Nevada, Oregon and southern Washington should be evaluated for their potential for grizzly bear recovery areas, but then the agency declined to include them.

Plaintiffs were denied standing to sue.  “A court may review a recovery plan to the extent that it is missing one of the required plan components,” the court order states, “but it may not entertain disagreements with the agency concerning the substance of those components.”

December litigation that doesn’t directly involve the Forest Service

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Five new lawsuits were filed against the U. S. Fish and Wildlife Service related to species found on national forests.

The Center for Biological Diversity and Maricopa Audubon sued the U.S. Fish and Wildlife Service for failing to update the critical habitat designation for the endangered Mount Graham red squirrels on the Coronado National Forest.

A coalition of conservation organizations has sued the U.S. Department of Interior and the U.S. Fish and Wildlife Service in the Montana District court on grounds that the government has failed to prepare a recovery plan for Canada lynx after being ordered by a court to do so by January 2018.

Seven environmental groups have filed a lawsuit in the Northern District of California that seeks a court order requiring the U. S. Fish and Wildlife Service to complete its five-year review of the owl’s protected status and to issue a final decision on the petition to upgrade the owl from a threatened to endangered species.

Two lawsuits, involving 25 plaintiffs, have been filed in the Montana District court against the U. S. Fish and Wildlife Service and its decision to not list the wolverine as a threatened or endangered species on October 8.

The Center for Biological Diversity has filed a lawsuit in the District of Columbia District court challenging the Trump administration’s recent termination of a program aimed at restoring grizzly bears to the North Cascades in Washington.

The BLM was sued over its management of the Carrizo Plain National Monument.

The Center for Biological Diversity and Los Padres Forest Watch have sued the Bureau of Land Management in the Central District of California court to reverse its approval of what would be the first new oil well and pipeline in Carrizo Plain National Monument since it was established in 2001.

Other oil and gas litigation involving public lands and waters.

  • Beaufort Sea (court decision) (includes a link to the opinion)

The Ninth Circuit Court of Appeals rejected the proposed Liberty project, which would have involved the construction and operation of a nine-acre artificial island and a 5.6-mile pipeline along the Alaska coast in the Beaufort Sea.  The court faulted to Bureau of Ocean Energy Management for arbitrary modeling of economic effects of climate change, and the U. S. Fish and Wildlife Service for inadequate analysis of effects on polar bears.

Native Alaskans and environmental groups are asking a federal district court to block the Trump administration from selling oil drilling rights on the coastal plain of the Arctic National Wildlife Refuge on January 6th.  Environmentalists were already challenging the Interior Department’s August decision to formally authorize an oil auction.

Earthjustice filed a lawsuit in the District Court of Alaska challenging the Willow Master Development Plan oil and gas project in Alaska’s National Petroleum Reserve in the western Arctic because of its effects on climate change and polar bears.  Earthjustice sued the U.S. Bureau of Land Management and U.S. Fish and Wildlife Service on behalf of the Center for Biological Diversity, Friends of the Earth and Greenpeace.

We have discussed the topic of “political interference” in agency decisions; here is a case about that.

The U.S. District Court for the District of Arizona found sufficient evidence of bad faith to grant a motion authorizing discovery and compelling the U.S. Fish & Wildlife Service (FWS) to produce internal documents showing whether political corruption influenced an abrupt reversal of policy regarding a huge property development near the San Pedro River.  The court stated:

“Director Spangle plainly admitted that he was forced to concur on a decision that was his to make…  Director Spangle’s statements call FWS’ entire decision-making process into question. These statements, at the very least, support a showing of bad faith sufficient to warrant deliberative materials and limited extra-record discovery.”

And the Colorado pooping story (which does directly involve the Forest Service) continues.

David Lesh posted a photo on social media that allegedly showed him defecating in Maroon Lake on the White River National Forest. U.S. Magistrate Gordon Gallagher ruled Oct. 30 that because of Lesh’s latest action, he was prohibited from “entering onto, being on, or remaining on National Forest System Land” while awaiting disposition of his court case.  Lesh’s attorney filed a motion Nov. 24 contending the Maroon Lake picture was a fabrication and should not have triggered the forestland ban.  In response, the government brief said, “The actual position of the Government has been and continues to be that the mere posting of the Maroon Lake photo was an act of impermissible defiance to the Court’s authority by the defendant, regardless of whether the image is genuine or not.”

 

 

 

NFS Litigation Weekly December 4, and December 23, 2020

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The December 23 Forest Service summary is here:  Litigation Weekly December 11 18 23 2020 Email

Case materials are provided in the links below.

(There is no actual summary for December 4, but there was one case noted in the cover email.)

COURT DECISIONS

On December 1, 2020 the Eastern District Court of Washington issued a favorable decision to the Forest Service and the U.S. Fish and Wildlife Service, regarding the Mission Restoration Project and Forest Plan Amendment #59 on the Okanogan-Wenatchee National Forest.  The Project was consistent with the forest plan and did not violate NEPA (with an EA) or ESA (not likely to adversely affect grizzly bears).

On November 24, 2020 the District Court of Montana dismissed the case against the Gold Butterfly Project and a project-specific forest plan amendment as moot for lack of jurisdiction, since the Bitterroot National Forest withdrew the record of decision on August 28, 2020 to provide additional review and analysis.

On December 3, 2020, the District Court of Idaho issued another decision against the Forest Service on the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest, denying Defendants motion to alter or amend the court’s summary judgment in favor of plaintiffs, resulting in the total vacatur of the 2019 decision.  (The original court decision is provided here, with links to other discussions.)

NEW CASES

On November 30, 2020, WileEarth Guardians and Western Watersheds Project filed a complaint in the Eastern District Court of Washington against the Forest Service, challenging the authorization of domestic sheep grazing on seven allotments within the Okanogan-Wenatchee National Forest regarding continuing failure to reduce the risk of contact between domestic sheep and bighorn sheep, and alleging NFMA and NEPA violations.

On December 7, 2020, Center for Biological Diversity and Western Watersheds Project filed a complaint in the District Court of Colorado against the Department of Interior, U.S. Fish and Wildlife Service, Bureau of Land Management, National Park Service, and the Forest Service, regarding the Gunnison Basin Candidate Conservation Agreement’s Biological Opinion, for development, recreation, and livestock grazing authorizations in the Gunnison Basin, including the Grand Mesa, Uncompahgre and Gunnison National Forest.  More information can be found in this article.

On December 7, 2002 Conservation Northwest and WildEarth Guardians filed a complaint in the Eastern District Court of Washington against the Forest Service regarding the modification to the vehicle class use designations and the motor vehicle use maps, which opens 117 miles of roads in the Colville National Forest to vehicle uses.  They allege violations of ESA, NEPA and the Travel Management Rule.  This article provides more background, including on Conservation Northwest as an infrequent plaintiff.

OTHER CASES

  • Appalachian Voices v. U.S. Department of Interior ( 4th Cir.) (As described in the December 4 Litigation Summary email.) 

On November 18, 2020 the 4th U.S. Circuit Court of Appeals denied appellants motion for a temporary stay of activities on the Mountain Valley Pipeline where protected fish are located. However, this order does not lift a hold on permits issued by the U.S. Army Corps of Engineers on November 9, 2020, which prevents the Mountain Valley Pipeline from completing stream crossings.  (See next case.)

On December 1, 2020 the 4th U.S. Circuit Court of Appeals issued a stay on the use of a streamlined Nationwide Water Permit 12 (issued by the U.S. Corps of Engineers) for the Mountain Valley Pipeline in the Huntington, West Virginia on the Jefferson National Forest.

Blogger’s update:  The Forest Service has released its Final Environmental Impact Statement supporting eleven amendments to the forest plan and approving the permit to cross national forest lands.  Additional information may be found in this article.

 

BLOGGER’S BONUS

On September 14, Defenders of Wildlife filed a notice of intent to sue the Rio Grande National Forest (as well as the Fish and Wildlife Service) for violating the Endangered Species Act with its adoption of its revised forest plan.  They assert that, when it revised the plan, it, “abandoned key habitat protections that have been in place for more than a decade that significantly limited the logging allowed in important habitat for the threatened Canada lynx,” and that, “the new standards open up hundreds of thousands of acres of lynx habitat in the Rio Grande National Forest to largely unregulated logging, increasing the threat to the small and struggling Colorado lynx population.”

Trillion Trees and Natural Carbon Storage Act

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We’ve been talking about developing an actual carbon policy for forest management.  Republicans have been willing to concede that planting trees would be beneficial, but others say that is not enough.  We now have a more comprehensive bipartisan legislative proposal that is getting some attention – The Trillion Trees and Natural Carbon Storage Act.  According to the Washington Post, “The forestry proposal is the first to emerge from the Climate Solutions Caucus, which Coons and Braun launched a little more than a year ago.”  It “directs the U.S. Forest Service to set goals for how much carbon the forests, grasslands, wetlands and some coastal areas should sequester from the atmosphere.”

According to sponsor Senator Young (R-IN), among the things it would do is:

  • Requires that USDA establish objectives for increasing the net carbon stock of American forests, grasslands, wetlands, and coastal blue carbon habitats.

Young’s website provides a link to the bill.  The specific language applicable to the Forest Service is to establish within two years, “objectives for increased net carbon stock for the forest, grassland, wetland, and coastal blue carbon habitat ecosystems of the United States that are owned or managed by the Federal Government.” The objectives “shall be established at levels that assist in achieving (A) the optimally feasible and ecologically appropriate increase in the total net carbon stock.” Those objectives, “shall be based on information relating to the maintenance or restoration of the ecological integrity of the ecosystems described in subsection (a), including maintaining or restoring ecologically appropriate forest, grassland, wetland, and blue carbon habitat structure, function, composition, and connectivity…”  That sounds like it is straight out of the 2012 Planning Rule.  There is no mention of national forest planning per se in the bill, but it is hard to see any other vehicle for implementing this policy and these objectives on national forests.

Young’s website also states that, “This legislation is supported by The Nature Conservancy, National Wildlife Federation, Environmental Defense Fund, World Wildlife Fund, National Audubon Society, Bipartisan Policy Center, American Forest Foundation, American Conservation Coalition, National Association of State Foresters, Conservation International, and Citizens for Responsible Energy Solutions.”

According the Environmental Defense Fund, it “follows recommendations from climate scientists and nonprofit organizations to focus on measuring climate impact instead of number of trees planted.”  EDF’s summary:

  • Expand existing U.S. Forest Service carbon accounting to include grasslands, wetlands and coastal ecosystems, in addition to forests.
  • Ensure that forests and other ecosystems will be valued not only for harvested materials, but also for important climate mitigation functions.
  • Measure progress using “net carbon stock,” a metric that reflects the dynamic nature of ecosystems and how carbon stores can grow or shrink over time.
  • Direct the Forest Service to share expertise, including technical capacity to increase carbon stored in urban forests, with states and recipients of U.S. foreign aid.
  • Provide funding to alleviate the nation’s 1.3-million-acre backlog of reforestation projects.

One section of the bill intends to provide financing “to facilitate the sale of credits in the voluntary carbon market or other recognized environmental market…”  However (as described in the same Washington Post article linked above), carbon offsets have become an issue in relation to the nomination of Mary Nichols, the longtime head of the California Air Resources Board, to be the new director of the Environmental Protection Agency.

One central point of contention is her achievement of California’s cap-and-trade program for greenhouse gas emissions. The program allows companies to offset harmful emissions by paying for forestation or other projects that decrease gases elsewhere. But opponents say it amounts to a license to pollute with poor and minority communities bearing the brunt of environmental harms.

Carbon has also come up in relation to the nomination of Tom Vilsack to be USDA Secretary.  The chance to work on Biden’s climate agenda may have made the job more attractive for Vilsack to return.  Carbon seems to offer an interesting opportunity for the USDA to actually unite its agricultural and forestry forces behind a common goal.

Planning for protection from recreation

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This blog has discussed the effects of recreational activities on wildlife (here’s one), and whether federal land managers should be doing something different (than basically reacting to overuse).  It might be worth looking at how planning for use of newly acquired land is being done by local governments and land trusts that are interested in wildlife, and there happen to be a couple of current examples from Colorado.

Fishers Peak is a new state park near Trinidad, Colorado.  It was formerly a private ranch with very little recreational use and no trails or other developments.

“This is a property that has not been loved to death,” Dreiling says. “It’s been pretty well protected, and it’s important to us that we put recreation on this property in a wise way, in a thoughtful way. It’s an important ball that we’re not going to drop, that balance of conservation and recreation.”

In practice, that means a trail won’t be built just because it accesses the prettiest views; instead, the project partners are, for example, assessing where wildlife corridors are located and what sorts of impacts motorized vehicles could have so the public can enjoy the land inside Colorado’s second-largest state park without worrying too much about the environmental consequences. The park’s full playbook is still being drawn up, so not all of these questions have been answered, but efforts to bridge the sometimes conflicting ambitions of recreation and preservation could set a new standard for future projects—here and across the country.

Pitkin County has purchased land and granted a conservation easement to the Aspen Valley Land Trust to protect wildlife habitat.

The easement language includes a nod to a 2016 policy adopted by the Pitkin County Open Space and Trails Board, which states that the county shall “rely on the best available science for property-specific study of natural habitat conditions, including the role of the property in the context of larger habitat and wildlife patterns in the Roaring Fork watershed.” That policy also states that “human uses, if any, will be planned and managed to minimize intrusion into breeding/nesting areas and migration corridors … (and) minimize intrusion into the time periods and/or places of special habitat concern.”

Allowances for human use on the property are not guaranteed and would be made only after detailed studies are completed on site-specific conditions, identifying wildlife and habitat needs.

“You answer those questions first and then say what niches are left where you can integrate humans,” Will said in an interview. That could take the form of enacting seasonal closures or making specific areas of the property off-limits year-round. The management plan could take years to come together.

Of course federal lands are already developed to facilitate recreation.  This doesn’t mean they couldn’t be redeveloped (or undeveloped) where effects on wildlife have been identified.

NFS Litigation Weekly November 20, 2020 and November 27, 2020

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The Forest Service summaries are provided via these links:

Litigation Weekly November 20 2020 FINAL EMAIL (1)

Litigation Weekly November 27 2020 FINAL email

November 20

(Notice of Intent.)  On October 23, the Alliance for the Wild Rockies notified the Forest Service and the Fish and Wildlife Service of their intent to sue regarding the effects on grizzly bears of the Soldier-Butler Project and compliance with the Northern Continental Divide Ecosystem Forest Plan Amendment (for grizzly bears) biological opinion on the Lolo National Forest.  Two complaints have already been filed on this project.

  • Sierra Club v. United States Army Corps of Engineers

(Update – no detailed summary provided.)  On November 9, the 4th Circuit Court of Appeals agreed to pause developers’ use of a streamlined water permit (issued by the U.S. Corps of Engineers) for the Mountain Valley pipeline. Construction may continue in upland areas of the pipeline’s route, except for those on the Jefferson National Forest affected by this prior injunction.

November 27

(New case.)  On November 19, 2020 the Center for Biological Diversity filed a complaint in the District Court of Nevada against the Forest Service and the U.S. Fish and Wildlife Service, concerning implementation of the Lee Canyon Ski Area Master Development Plan on the Humboldt-Toiyabe National Forest (and a related amendment to the forest plan), which would provide summer use infrastructure and affect the federally endangered Mt. Charleston Blue Butterfly.

 

BLOGGER’S BONUS

(New case against USFWS.)  On November 3, 2020, the United States Fish & Wildlife Service published a final rule removing the gray wolf from the federal list of Endangered and Threatened Species in the lower 48 United States and Mexico.  The Sierra Club and the Center for Biological Diversity have sent the Service a notice of intent to sue to overturn the rule.  (The link above includes the long, complicated history of wolves under ESA.)

(New case.)  In September, Paul and Cathy Donohoe, of Donohoe Outfitting, and five other family members filed suit in the Montana U.S. District Court seeking to prevent a trail from being built that would allegedly threaten grizzly bears. The Donohoes protested the work in part because it would increase traffic close to their ranch.

(Update.)  In Center for Biological Diversity v. U. S. Forest Service, the Arizona federal district court denied a government motion to dismiss claims against the Fish and Wildlife Service because that agency does have authority to initiate consultation under the Endangered Species Act.  Both it and the Forest Service have been sued for failing to consult on more than 30 grazing allotments on the Apache-Sitgreaves and Gila National Forests within the upper Gila River watershed.  Our previous discussion is here.

(Court decision.)  On November 17, the Montana Supreme Court upheld a lower court decision and rejected a key pollution permit for the proposed Montanore silver-copper mine in the Cabinet Mountain Wilderness in the Kootenai National Forest.  Previous litigation has included the Forest Service, and was discussed here.

(Update.)  The multistate coalition that is challenging the Trump Administration’s changes to the CEQ NEPA regulations has added a claim that the government violated the Endangered Species Act by failing to consult with the federal wildlife agencies when it issued the regulations.  We discussed the proposed rule here.

Woodman spare that forest (the climate needs it)

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Source: Biodiversity Sri Lanka

I’ve been wondering if there is a straightforward answer to the question of how to best manage forest lands to sequester carbon for the foreseeable future to reduce potential climate change impacts.  We’ve beaten around that bush a few times, such as here.

I thought such an answer might be found in the kind of forest management activities carbon offset programs are willing to pay for.  I recently ran across this example, which describes two new programs for small forest landowners.

“Forest carbon projects have historically faced skepticism around their additionality and potential for leakage — that is, the shifting of tree removals to nearby acreage. The concern is that despite paying a landowner to keep trees on one parcel, the same number will simply be removed elsewhere, resulting in a null offset with no net change in carbon storage. Yet SilviaTerra believes this problem can be addressed by creating a market in which all landowners are eligible to receive carbon payments as an alternative to timber revenues…  Payments are scaled to target the timeframe when forests have matured to a point of likely timber harvest… SilviaTerra believes that timber harvest deferrals hold the potential for removing over a billion tons of atmospheric carbon within the United States in the coming decade, or 4.3 billion tons globally.”

SilviaTerra is paying landowners to not harvest mature trees now, and presumably they would continue to do that indefinitely for a parcel because, (according to this article on the carbon value of old forests), “We now know that the concept of overmature forest stands, used by the timber industry in reference to forest products, does not apply to carbon.”   The Family Forest Carbon Program pays for “improved forest management practices,” “such as removal of invasive species or limiting thinning.”  Both seem to treat the answer to my question as obvious – the best management for carbon is “don’t cut down trees.”

Here is what the Forest Service has had to say about the best available science.  This 2017 General Technical Report covers a lot of the pros and cons and questions and considerations and reservations that we have previously discussed, such as wood products, wood energy and fire risk, but if the goal is to “maintain and increase carbon stocks,” the best answer appears to be “decrease carbon loss:”

“Decreasing the intensity of forest harvest is one way to decrease carbon losses to the atmosphere (McKinley et al. 2011, Ryan et al. 2010). Across diverse forest systems, the “no harvest” option commonly produces the highest forest carbon stocks (Creutzburg et al. 2015, Nunery and Keeton 2010, Perez-Garcia et al. 2007).”

The Report was written for a broad audience of landowners and managers, so it also discusses options for managed stands:

“Managed stands typically have lower levels of forest biomass than unmanaged stands, even though the annual rate of sequestration may be higher in a younger forest. In managed forests, reducing harvest intensity, lengthening harvest rotations, and increasing stocking or retention levels will generally increase the amount of carbon stored within forest ecosystem carbon pools in the absence of severe disturbance (D’Amato et al. 2011, Harmon 2001, Harmon and Marks 2002, McKinley et al. 2011, Taylor et al. 2008b).”

However, they also provide caveats and qualifiers associated with obtaining overall carbon benefits from any strategy that removes trees, which make it clear this would likely be a second-best strategy for carbon sequestration.

With regard to national forests, the Report recognizes the role of NFMA and forest plan revisions:

“Assuming carbon is one of these key ecosystem services, the plan should describe the desired conditions for carbon in the plan area that may vary by management or geographic area. In developing plan objectives, the interdisciplinary team should consider the linkage between carbon and how plan objectives would contribute to carbon storage or sequestration. Standards and guidelines may also be needed to achieve desired outcomes for carbon.”

We shouldn’t have to just assume the importance of carbon sequestration, since that is a decision a forest plan could make.  With an incoming administration that has said it would integrate climate change into everything it does, a good question to ask them would be why should the Forest Service not establish in its forest plans the desired outcome to “maintain and increase carbon stocks.”  This should create a presumption or default that trees should not be removed unless the Forest Service can demonstrate scientifically that it would improve carbon sequestration (apparently difficult to do), or if it would meet some other goal that the planning process has determined is a higher priority than climate change (such as public safety).  Climate change mitigation has typically been diverted to a side-channel during forest planning, but there doesn’t seem to be any excuse now for why at least managing for carbon sequestration isn’t mainstream.