Jon Haber

Has the Helena-Lewis and Clark got jobs for you

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source: gustavofrazao / Getty

The Helena-Lewis and Clark National Forest revised forest plan was released recently and is now in the objection period.  A local newspaper decided to profile the benefits of the revised forest plan to “jobs” – 400 new ones are projected as a result of the revised plan.  As a former forest economist, I know how meaningless the economic analysis of forest plans can be, and this seemed a little far-fetched, so I thought I would take a look at it.

The EIS discloses the number of jobs resulting from recreation, grazing, timber, minerals, transfer payments and Forest Service expenditures.  That last item (which I think is mostly federal employees) makes up about half of the total employment benefit depending on alternative.  Actually, the number of jobs is the same for all of these categories in all alternatives, except for jobs related to timber harvest.  There, the preferred alternative (F) increases the timber jobs by five times over current levels (EIS Table 243, I get an increase of 497 from current levels), while roughly doubling the projected timber harvest volume over that resulting since 1980.  Elsewhere the EIS says, “An estimated 804 private industry timber jobs exist in this multi-county area.”  That doesn’t match the 119 shown in this table, but would mean the Forest would only increase industry employment by 50% or so, but still …  My point is just that this is suspicious and confusing.

The reality is that jobs created by Forest Service outputs are usually a very small part of a regional economy (the total number of jobs in this region is over 100,000, so that the total timber-related jobs is less than 1%) and the actual number of jobs will usually vary because of many factors that that Forest Service has no control over.  This is a good example of stuffing an EIS with information that does not help with the decision, and in fact may confuse it.

Then there is the question of why should we care.  The “regulatory framework” for social and economic benefits (p. 189 of the EIS) provides no authority for “creating jobs.”  (I doubt if there is one for doing something about “poverty levels” either, as Mac McConnell intimated here.)   The “findings required by other laws” included in the draft ROD do not include any related to social or economic growth.   And under NEPA, creating jobs would be a bad thing, since indirect adverse effects “may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems” (40 CFR §1508.8).

Of course, considering a specific effect on a specific industry or employer, might be a reasonable and relevant factor to consider for a long-term planning decision, if it were related to meaningful criteria about the “right” number of jobs and why, and properly disclosed in a record of decision.  I’m just not seeing that here, in this draft ROD:

The Plan also contributes to social and economic sustainability by providing plan components that collectively support an array of public benefits including jobs and income, … (p. 20)

This statement would have been true for any alternative, so the economic analysis contributed nothing.  It’s unfortunate that this was picked out as “news,” giving the wrong message about what our national forests are for, as well as raising questions about what is really going to happen.

Private land conservation easements benefit national forest wildlife

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In 2009, the owner of a golf course in Georgia donated a conservation easement to a non-profit land trust.  The easement included roughly 57 acres of primarily bottomland forests and wetlands along the Savannah River that would not be developed.  That land is directly across the river from the Sumter National Forest, 700 feet away.

To obtain a tax deduction for the conservation easement, it has to be “exclusively for conservation purposes” based on one or more of the criteria in the Internal Revenue Code.  They include:

(ii) the protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,

(iii) the preservation of open space (including farmland and forest land) where such preservation is–

(I) for the scenic enjoyment of the general public, or

(II) pursuant to a clearly delineated Federal, State, or local governmental conservation policy,

and will yield a significant public benefit,

These issues were recently litigated by the IRS for this easement in the 11th Circuit Court of Appeals, which found the donation to be eligible as both habitat (ii) and scenic open space (iii)(I).  IRS Treasury Regulations elaborate on these requirements with regard to habitat by including “natural areas which are included in, or which contribute to, the ecological viability of a local, state, or national park, nature preserve, wildlife refuge, wilderness area, or other similar conservation area.”  However, the court accepted expert testimony from the IRS that the easement did not support the forest’s ecological viability.

There is no mention of testimony from the Forest Service. The 2012 Planning Rule stresses that, planning for ecological integrity must take into account “conditions in the broader landscape that may influence the sustainability of resources and ecosystems within the plan area” (36 CFR §219.8(a)(1)(iii)).  In addition, where a national forest plan area can not maintain a viable population of a species of conservation concern, “the responsible official shall coordinate to the extent practicable with other Federal, State, Tribal, and private land managers having management authority over lands relevant to that population” (36 CFR §219.9(b)(2)(ii))).

The also court determined, regarding open space (iii)(II), that, “There is no qualifying federal, state, or local government conservation policy that applies to this land…” In fact, the Forest Service Open Space Conservation Strategy includes this vision: “Private and public open spaces will complement each other across the landscape to provide ecosystem services, wildlife habitat, recreation opportunities, and sustainable products.”

In this case, private land adjacent to a national forest was conserved, but there is no evidence that the Forest Service was even paying attention.  The Forest Service needs to be more alert to these opportunities that would benefit national forest resources as well as contribute to greater national conservation needs.  Maybe if the Forest Service promoted its conservation policies better, they would facilitate more donated easements and protect more habitat for wildlife species that also use national forests.

Along somewhat the same lines, conservationists in Florida are striving to conserve the Ocala to Osceola Wildlife Conservation Corridor, which would connect the two national forests of those names across 50 miles of multiple other ownerships (including a military base).  Here is a presentation by the U. S. Natural Resources Conservation Service, which uses funding from the federal Farm Bill Resource Conservation Partnership Program to purchase conservation easements and create wildlife habitat on private lands within the corridor.  (This is the kind of “governmental conservation policy” that should also support federal tax deductions for donated conservation easements.)

The federally endangered red-cockaded woodpecker is an excellent example of a species that the Forest Service needs to coordinate management with others for, and here’s a bit of the success story about that in the O2O Corridor.

A red-cockaded woodpecker (RCW) captured at Camp Blanding in Clay County is evidence that a project led by North Florida Land Trust to preserve land within the Ocala to Osceola (O2O) wildlife corridor is working.  The bird captured at Camp Blanding was the first time this endangered species had moved between one of the national forests and the military installation since they began banding and recording the birds over 25 years ago.

“USDA Forest Service” is listed as a “partner” by NRCS, and the “National Forest Service” by the North Florida Land Trust.  The latter gives me a sense of how deeply the Forest Service has not been involved, and I sure can’t find anything about this effort on either national forest website or using a national search.  It’s too bad the Forest Service isn’t providing more leadership (and getting more of the credit) for conserving its important wildlife resources.

Litigation Summary – late April/early May 2020

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  • Stanislaus grazing (court decision in Central Sierra Environmental Resource Center v. Stanislaus National Forest, not included in earlier Forest Service summaries)

On August 6, the Eastern District of California court held that the grazing program (permits and annual operating instructions) for three livestock grazing allotments on the Stanislaus National Forest did not violate the Clean Water Act and is consistent with the forest plan in accordance with NFMA.  With regard to the latter, it deferred to the Forest Service interpretation of forest plan grazing standards to require long-term compliance based on monitoring and on evidence of steps taken to reduce impacts.  (We were talking about this here a couple of years ago.)

On April 21, the Eastern District of California court denied a preliminary injunction against two recovery projects following the Rim Fire on the Stanislaus National Forest.  New information submitted by plaintiffs suggesting greater natural regeneration than expected did not warrant preparation of a supplemental EIS.   While plaintiffs did raise serious questions regarding whether the California Department of Housing and Community Development should have analyzed the cumulative impacts of a biomass facility in conjunction with the recovery projects, they did not establish a likelihood of success on the merits, which allowed the benefits of the projects to outweigh potential harm from an injunction.  (Searching this site for “Rim Fire” will find a lot of background, most recently here,  A previous lawsuit was discussed here.)

On April 29, the Montana district court denied plaintiff’s motion for a preliminary injunction against the Darby Lumber Lands II Project on the Bitterroot National Forest since logging wasn’t expected to start until this fall.  “Friends of the Bitterroot said the agency’s decision to include logging in the second phase of work on the already heavily logged area that was once owned by Burlington Northern Railroad and then Darby Lumber was contrary to the agency’s initial focus on restoration of the area.”

On April 30, the Colorado district court granted summary judgment to plaintiffs on two of its Freedom of Information Act claims related to oil and gas lease sales (some of the records involve the Forest Service, so I’m assuming this affects the San Juan National Forest) and their effects on the federally listed Gunnison sage-grouse.  BLM was required to search for additional records at its national headquarters and to prepare a new index that would allow the court to determine if FOIA exemptions were properly applied.

  • Malheur grazing (court decision in Oregon Natural Desert Association v. U. S. Forest Service)

On May 1, the Ninth Circuit Court of Appeals affirmed the district court and the Forest Service determination that a number of grazing authorization decisions on the Malheur National Forest were consistent with two standards in the forest plan (including a key standard found in the Inland Native Fish Strategy applicable to all national forests with bull trout habitat). The court agreed with the Forest Service that determining consistency with standards focused on outcomes designed to protect aquatic resources required a “multi-pronged approach” over time, including monitoring.

  • Kilgore Mine (update on Idaho Conservation League v. U. S. Forest Service)

On May 4, the Idaho district court revoked the Forest Service’s approval of the Kilgore Project exploring for gold on the Caribou-Targhee National Forest, after ruling in December that the Forest Service failed to consider the applicant’s underground drilling as a threat to water quality and Yellowstone cutthroat trout in Corral Creek.

  • Grizzly bear delisting (update – hearing on Crow Indian Tribe v. U.S.A.)

The Ninth Circuit Court of Appeals held a hearing on this case on May 5th, as reported here and here.  The U. S. Fish and Wildlife Service has agreed to study the impacts on the species as a whole from delisting the Yellowstone population of grizzly bears, but does not want to conduct the “comprehensive review of the entire listed species” mandated by the district court (which could have implications for the legal status of other populations).  The genetic health of the species is also at issue.  (The district court opinion is found here.)

  • Bear baiting  (update on WildEarth Guardians v. U. S. Forest Service)

On May 7, the Idaho district court dismissed the NEPA claim but allowed the ESA claim to continue in this case involving black bear baiting in national forests in Idaho and Wyoming.  The agreement with the states to allow the practice, which has led to the death of grizzly bears, was established by rulemaking, so there is no ongoing federal action that would trigger the need for additional NEPA analysis.  The attempt by the U. S. Fish and Wildlife Service to remove itself from the ESA part of the case was denied.  (When this case was filed, we discussed it here.)

Central Oregon LandWatch and Oregon Wild filed suit against the 15,763-acre Black Mountain Vegetation Management Project on the Ochoco National Forest, claiming it would build too many roads, allow logging by streams and failed to identify and protect elk habitat.

The Center for Biological Diversity and the Environmental Protection Information Center have sued the U. S. Fish and Wildlife Service in California for failure to complete the ESA listing process for Humboldt marten within the required timeframes after proposing it for listing in October, 2018 (as we discussed here).  Martens are threatened by logging of mature forests, loss of closed-canopy habitat to wildfires, rodent poison used in marijuana cultivation, and vehicle strikes.

On May 6, five conservation groups, a canoe manufacturer, five outfitters and two outdoor-activity nonprofits sued in the District of Columbia court.  Plaintiffs allege that the Bureau of Land Management violated the National Environmental Policy Act before renewing the leases of land in the Superior National Forest for the Twin Metals copper-nickel mining project, following a prior rejection by the Forest Service under the previous administration.  Additional background may be found here and here.

In the latest effort to stop construction of the Mexico border wall, three conservation groups have filed suit in the District of Columbia court against three federal agencies (not including the Forest Service) for taking $7.2 billion from the Department of Defense without congressional approval of this use.  They allege that the planned barriers will wall off all remaining jaguar corridors along the U.S.-Mexico border (which would affect those using national forests).

  • SLAPPback suit against Roseburg Forest Products (new lawsuit: Water for Citizens of Weed California v. Churchwell White)

A group of citizens in Weed California has sued attorneys for the Roseburg Forest Products Company.  The attorneys had previously sued the individual citizens, who were activists involved in a disagreement about the town of Weed’s water supply.  The citizens prevailed in that case using California’s anti-strategic litigation against public participation, or anti-SLAPP, law intended to prevent use of the courts for intimidation.  In an unusual turn, they are now seeking damages from the attorneys in California Superior Court.

In response to the NOI referenced here, the U. S. Fish and Wildlife Service has agreed to reexamine the effect of the proposed development of summer recreation facilities (including mountain bike trails) on the federally endangered Mt. Charleston blue butterfly and its designated critical habitat on the Humboldt-Toiyabe National Forest.

The latest on forest plan revisions (and wildlife)

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In the past couple of months the Forest Service has increased its family of forest plans revised under the 2012 Planning Rule to six.  The Chugach and Rio Grande national forests have joined the Francis Marion, Flathead, El Yunque, and Inyo.  The Forest Service revision schedule is over six months old, but the Helena-Lewis and Clark National Forest may be next.

Here’s what looks like a news release from the Rio Grande.

The plan prioritizes the use of active management to foster sustainable and productive use of the forest. Compared to the 1996 plan, this new plan is less prescriptive and emphasizes flexibility and commitments to working with the public. Management direction has been updated for all plant and wildlife species.

This seems to capture the mood of the Forest Service these days.  The only commitments it has ever liked are those they have to do any way, especially if they are check-the-box kinds of procedural commitments like “working with the public.”  In their “update” for wildlife, rather than commit to protecting wildlife as required by NFMA and the Planning Rule, they infuse the plan with discretion.  Here’s some examples of what the Rio Grande seems to feel (based on the best available scientific information) would “provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of conservation concern within the plan area” – which plan components “must” do (36 CFR §219.9(b)).

DC-SCC-2: Structure, composition, and function of coniferous forests, including late seral forests, meet the needs of associated species, including species of conservation concern. (Forestwide)

There is a series of these desired conditions for different ecosystems that all say the same thing, which is “we’ll figure out what these species need later.”  The Planning Rule requirement is for “plan components” to meet the forest plan requirement, not for project-by-project decisions about how to protect at-risk species.  Let’s see if the standards and guidelines add anything …

G-SCC-3: To maintain viability of species of conservation concern, reduce habitat fragmentation and maintain structural conditions of sagebrush ecosystems through design of management activities. Patch sizes should not be less than 5 acres. (Forestwide)

TEPC-G-1: To avoid or minimize adverse effects to listed species and their habitat, management actions should be designed with attention to threatened, endangered, proposed, or candidate species and their habitats. (Forestwide)

Wow.  Apparently any “structural conditions” will do, but they at least appear to concede that there is a minimum patch size needed for some species in sagebrush ecosystems (this is actually the kind of “specific” desired condition the Planning Rule envisioned), but conversely there is not enough science to tell them what is needed for anywhere else.  If the courts say this is good enough, then the Forest Service has essentially excised the diversity requirement for forest plans from NFMA.  (Never mind the question of “how much did the Forest Service spend on forest planning to get THIS?”)  (This is a continuation of a pattern discussed here, and may lead to some of the same kinds of problems under ESA.)

Litigation update – end of April

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I haven’t seen a Forest Service summary for awhile, but here’s some things from my list that are becoming old news:

COURT DECISIONS

In Dobbs v. U. S. Forest Service, the Tenth Circuit Court of Appeals upheld a decision by the Forest Service to deny a request for a special use permit to build a gravel access road through the Upper Kiamichi River Wilderness in the Ouachita National Forest in Oklahoma.  The court accepted the Forest Service’s determination that a foot trail would provide “adequate access” under the requirements of the Wilderness Act.

But with or without a road or cabin, Dobbs can use his property to the same extent that most of the other inholders in the area use their own inholdings. And if Dobbs eventually decides to build a cabin, the agency concluded that he can do so with pack animals and helicopter to transport materials. Given that this is a “technical . . . matter[] within the [Forest Service’s] area of expertise,” we owe their decision “especially strong” deference.

This trend, it noted, was consistent with practices nationwide because a review of National Forests found that “motorized vehicles were only allowed on roads that existed prior to the area’s wilderness designation.” Id. That same national review found “no cases of new road construction . . . except in the rare instance where a new road was authorized by wilderness legislation.” Id.

In NRDC v. McCarthy, the Utah federal district court held that an environmental review under the NEPA was not required before the BLM lifted a temporary closure order for the Factory Butte area in southern Utah.  The purpose of the closure was to protect threatened and endangered cacti species that had been or were at risk of being adversely impacted by OHV use.

The Tenth Circuit Court of Appeals has recognized that the BLM’s implementation of “such [temporary] closures are nondiscretionary,” meaning that the action is exempt from the NEPA’s environmental review requirements. The plain language of (43 CFR) § 8341.2(a) supports a conclusion that lifting of a temporary closure order is also a nondiscretionary action of the BLM which is exempt from the NEPA.

There were concurrent changes being made in the area’s Resource Management Plan, and the court addressed the question of why this particular situation didn’t have to be addressed as part of that process.

“[The] exemption of [temporary] OHV travel restrictions from the [RMP] process reflects the realities of public land management and allows the BLM to timely comply with its statutory mandate to `take any action necessary to prevent unnecessary or undue degradation of the lands.'” And the exemption of lifting temporary OHV travel restrictions from the RMP process enables the BLM to comply with its statutory directive to “manage the public lands . . . in accordance with the [RMP].”

(Note:  That quote in the last sentence should not be read as allowing site-specific travel planning decisions to remove OHV travel restrictions without complying with NEPA.  At most, it should be limited to cases like this one where a temporary closure is being lifted, and Forest Service regulatory authorities would be different.)

SETTLEMENT

The Tahoe National Forest has agreed to limit e-bikes to trails open to motorized vehicles in response to the lawsuit filed by the Backcountry Horsemen and others in a case filed in October and discussed here.

NEW CASES

A coalition of wildlife advocacy groups filed a lawsuit charging the U.S. Forest Service with continuing to grant elk feeding permits on the Bridger-Teton National Forest without adequate environmental analysis, a move ordered by the U.S. District Court of Wyoming in 2018.

As promised in the NOI described here, two environmental groups filed a federal lawsuit to stop a proposed underground natural gas pipeline from Idaho to Wyoming in the Caribou-Targhee National Forest, saying it would harm protected grizzly bears and other wildlife and would create a road through six roadless areas.  Here is the plaintiffs’ perspective.

The Wilderness Society has gone to court to obtain a draft EA related to this possible mine on the Superior National Forest (as we discussed here) through the Freedom of Information Act.

“While federal decision-making is supposed to be based on “substantial evidence,” there is little question that political calculations occasionally play a role as well. In this case, however, environmental critics of Twin Metals contend that the decision was not just partially political, but entirely so, and they believe it was directly at odds with the evidence developed as part of the two-year study.”

A complaint was filed in the federal court in January against USDA Secretary Sonny Perdue and the U.S. Forest Service alleging gender discrimination and harassment and retaliation against a woman who worked for the Green Mountain National Forest and claims a colleague harassed her.

 

Clean Water Act major court decisions

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Not long ago we were discussing EPA’s new regulations redefining WOTUS to exclude areas that were not obviously connected to navigable waters, as summarized in the graphic above.  It was the latest iteration of a political dispute over the scope of the Clean Water Act.  Now the U. S. Supreme Court has, in a 6-3 decision, stepped in to apparently invalidate the recent “bright line” rule established by the EPA to again make point source permit requirements contingent on the actual risk of pollutants getting into navigable waters.  This somewhat splits the difference between the Obama and Trump interpretations, but clearly rejects the latter’s new absolute position.  “Significant nexus” has now become “functional equivalent.”

On April 23, 2020, the United States Supreme Court ruled that the addition of pollutants to groundwater which travels a half mile to enter navigable waters is the functional equivalent of a direct discharge, and subject to the protections and requirements of the Clean Water Act (“CWA”). The decision in County of Maui v. Hawaii Wildlife Fund, 590 U.S. (2020), represents a sea change in CWA interpretation, and may spell the end of the Navigable Waters Protection Rule issued by EPA and the Army Corps of Engineers only two days earlier. That rule (colloquially known as the 2020 WOTUS Rule) specifically excluded groundwater from the protections of the CWA under a new definition of “Waters of the United States.”

In determining that the CWA requires a permit when there is a functional equivalent of a direct discharge from a point source to navigable waters, the Supreme Court acknowledged that application of the statute will be highly fact dependent, with time and distance being critical issues in most cases.

In addition, a federal district court has stopped the Keystone Pipeline because its Clean Water Act permit for stream crossings is invalid.  This is significant because the permit was kind of the Clean Water Act equivalent of a NEPA categorical exclusion, a nation-wide blanket permit requiring limited environmental review that could be used for certain kinds of projects.  The court said that when the permit was renewed in 2017, the Army Corps of Engineers failed to adequately consider effects on species listed under the Endangered Species Act.  Since then the permit has been used 37,000 times.  So here’s what’s happening ….

The U.S. Army Corps of Engineers has suspended a nationwide program used to approve oil and gas pipelines, power lines and other utility work, spurred by a court ruling that industry representatives warn could slow or halt numerous infrastructure projects over environmental concerns.

The Trump administration is expected to challenge the ruling in coming days. For now, officials have put on hold about 360 pending notifications to entities approving their use of the permit, Army Corps spokesman Doug Garman said Thursday.

Pipeline and electric utility industry representatives said the effects could be widespread if the suspension lasts, affecting both construction and maintenance on potentially thousands of projects. That includes major pipelines like TC Energy’s Keystone XL crude oil line from Canada to the U.S. Midwest, the Mountain Valley natural gas pipeline in Virginia and power lines from wind turbines and generating stations in many parts of the U.S.

The Forest Service is involved with litigation of the Mountain Valley Pipeline as discussed most recently here.

 

Virus driving forest fire policy

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It looks like the pandemic is taking the Forest Service back to the old days of fire suppression, when the goal was to have them all out by 10:00 am.  It will be interesting to see (if it’s possible) what actual difference that makes in the coming fire season (which is predicted to generally be normal or slightly worse).  Of course changes in operations from social-distancing may also be a factor.  And this all has be squared with the Chief’s pronouncement (quoted there):  “Forest Service resources will be used “only when there is a reasonable expectation of success in protecting life and critical property and infrastructure.”

Prior to this year’s COVID-19 complications, the U.S. Forest Service and other agencies have increasingly looked to low-intensity, managed fires on wildlands to improve ecosystem health and reduce undergrowth that can lead to intense, out-of-control fires. This fire strategy has meant allowing unintentional fires and prescribed burns to reduce excessive undergrowth when conditions are favorable.

“We want to try to limit the amount of fire that is out on the landscape this year, which is in contrast to what we’ve been trying to do around here. We’ve been trying to get fire out on the landscape. But for obvious reasons, for the health of our  firefighters and the public in general, we need to limit those as best we can,” said James Pettit, fire staff officer for Coconino National Forest.

Another benefit of the quick suppres­sion strategy this year, according to Pettit and Russ Shumate, a district manager for the Arizona Department of Forestry and Fire Management, is reducing the need to bring large numbers of fire fighters and support staff together for long operations. Shumate noted that managing a large fire can involve fire camps with 500 people. Controlling spread in these conditions might be challenging.

Shumate said quick suppression will also allow the state fire agency to manage fires with fewer resources, something he is expecting this year.

“In the previous days of the Forest Service they had what they called a ‘10 o’clock rule’ — the goal was to suppress all fires before 10 o’clock the next morning. We’re not going to state it as that aggressive, but it’s a real similar strategy [this year]” Pettit said.

The USFS instituted the “10 a.m. policy” in 1935. It was officially replaced in 1977 with a policy that expanded fire fighting strategies to include managed burns.

A similar message is coming from the Bitterroot National Forest (with more about “fewer resources” from the Job Corps):

Wilson said the objective will be to keep all fires on the national forest — including wilderness — small and limit the amount of smoke that’s produced.

 

Forest planning for mechanized use in recommended wilderness

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We’ve talked about whether mountain bikes should be allowed in areas recommended for wilderness designation by the Forest Service in a forest plan, for example, here.  Most of the angst has been related to a policy adopted by Region 1 that many interpret as excluding this use because allowing it would reduce the likelihood that an area would actually be designated.  Here’s an example from another region of how a forest plan would address this question.  This language is from the draft EIS for the Nantahala-Pisgah National Forest revised plan (North Carolina). While this is written about the effects of wilderness designation, the DEIS also makes it clear what activities the Forest thinks would create a risk to future wilderness designation options.

Wilderness recommendation and designation would remove the potential to generate revenue from timber production, forest product sales, and other land uses which support surrounding development such as utility or transportation corridors. No new mineral claims would be filed, but valid existing claims would be allowed to operate.

Existing roads within recommended areas would either continue to be maintained as linear wildlife fields or decommissioned and allowed to return to a natural state. No new wildlife fields would be created nor any timber harvest activities allowed. Restoration activities where the outcomes protect wilderness characteristics would be allowed to continue, including monitoring, relocation of animals, habitat improvements such as removal of nonnative fish species and nonnative invasive plant species, stream improvements, and rehabilitation of recreation impacts.

Existing trails would continue to be maintained to allow for hiking and equestrian use per current trail-use designations, but mechanized transport such as bicycles or carts would be prohibited in all recommended areas (with exception of approved mobility devices for the impaired). Commercial collection of non-timber forest products such as galax or ginseng, would not be permitted; however, collection for non-commercial or tribal purposes would be allowed. Other commercial activities such as recreation special-use events would also be prohibited in areas recommended for wilderness designation.

The mountain bike decision by the Forest was the followed discussions with a public working group, which also included consideration of whether future wilderness recommendations could be conditioned on providing adequate mountain bike trails.  The location of the trails was potentially less important than the amount, but it is unknown at this time where additional trails might be and how that might affect wilderness boundaries.  Consequently, trails in a potential wilderness area could be managed to phase out the existing but unauthorized mechanized use gradually after providing other comparable opportunities, and when certain conditions were met, appropriate areas would be formally recommended, with the full support of both mountain bike and wilderness groups.  But the Forest ended up recommending the area for wilderness, which would exclude the use.
In effect, the Forest appears to have considered an alternative that would have not recommended an area, but committed to a process that would recommend some or all of it as wilderness in the future (presumably with a plan amendment) when certain objectives are achieved.  You don’t find this alternative mentioned in the DEIS, though, as one considered but eliminated from detailed study.
Back in R1, the Nez Perce-Clearwater draft revised plan includes a suitability designation regarding mechanized use in all areas recommended for wilderness designation in a particular alternative.  Of the four action alternatives, one has no recommended wilderness and one would allow mechanized use in the areas recommended.  (The DEIS does not say what the current direction for recommended wilderness is.)  There is no preferred alternative.

 

NFS Litigation Weekly April 17, 2020

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Forest Service summaries:  Litigation Weekly April 17_2020_email

COURT DECISIONS

In Native Ecosystem Council v. Martin, the 9th Circuit Court of Appeals affirmed the district court and upheld the Johnny Crow wildlife habitat improvement project on the Helena-Lewis and Clark National Forest based on a wildlife habitat improvement categorical exclusion.

In another Native Ecosystem Council v. Martin, the 9th Circuit Court of Appeals affirmed the district court and upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest based on a HFRA categorical exclusion.

In BARK v. U. S. Forest Service, the District Court of Oregon held that Crystal Clear Restoration Project on the Mt. Hood National Forest required an EIS.  (This was also included last week.)

NEW CASES

In Mountain Pursuit v. U.S. Forest Service, plaintiffs filed an amended complaint (after their previous complaint was dismissed without prejudice) regarding ongoing motorized and mechanized use in wilderness study areas on the Bridger-Teton and Caribou-Targhee National Forests and its effects on ESA-listed species.  (D. Wyo.)

In Western Watershed Project v. Bernhardt, a second plaintiff is challenging the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest regarding impacts on the grizzly bear and the Kendall Warm Springs dace.  The first case, filed by the Center for Biological Diversity, was summarized here.  (D. D.C.)

NOTICES OF INTENT

WildEarth Guardians and the Western Watersheds Project claim the Forest Service and Fish and Wildlife Service are violating ESA by authorizing livestock grazing on three allotments on the Colville National Forest without proper consultation on several listed and candidate species.

The Center for Biodiversity intends to sue the Forest Service and Fish and Wildlife Service concerning the impacts of region-wide restoration projects on the Mexican spotted owl in New Mexico and Arizona.  (The link actually goes to the Colville notice.)

BLOGGER’S BONUS

(New case, BLM)  Advocates for the West and other plaintiffs say the Bureau of Land Management’s 2019 plan for the conservation area sanctioned destructive levels of livestock grazing on lands that were supposed to be protected.  (An NOI under ESA is pending.)  (D. Ariz.)

(Administrative objection)  Yellowstone to Uintas Connection and the Alliance for the Wild Rockies filed a formal Objection and a call for a full Environmental Impact Statement with the Manti La Sal National Forest, objecting to the Cottonwood Range Improvements Project, for the grazing allotment managed by The Nature Conservancy’s Dugout Ranch.

(Court decision involving FWS)  The Arizona federal district court has overturned the U.S. Fish and Wildlife Service’s approval of a permit for the proposed Rosemont copper mine in the Coronado National Forest because FWS improperly estimated the potential groundwater drawdown from the mine’s operations and how that might impact several endangered species in the Santa Rita Mountains.  An earlier court decision also reversed the decision based on terrestrial species.

(FWS action required by injunction) The U.S. Fish and Wildlife Service announced a 60-day public comment period to help determine the scope of its analysis for rewriting the rule for Mexican gray wolf management in Arizona and New Mexico.

(NOI, FWS)  Four conservation groups intend to sue the Fish and Wildlife Service over its decision in November 2019 that the California spotted owl did not warrant listing under the Endangered Species Act.

(NOI, FWS)  Three conservation groups intend to sue the Fish and Wildlife Service over its decision in December 2019 that the red tree vole, found in northwest Oregon, did not warrant listing under the Endangered Species Act.

(New case against the state forestry agency) The Wendell State Forest Alliance has filed a lawsuit in county court against the state Department of Conservation and Recreation’s selective harvesting of an 80-acre old oak stand.  The main issue is that older trees that would be cut sequester more carbon, but the DCR is putting a higher priority on the forest’s long-term health.

NFS Litigation Weekly April 10, 2020

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Here’s the Forest Service summary:  Litigation Weekly April 10_2020_Final_Email

COURT DECISIONS

The 9th Circuit Court of Appeals determined that the Forest Service’s decision to not prepare an Environmental Impact Statement for the Crystal Clear Restoration Project on Mount Hood National Forest was arbitrary and capricious – as described in more detail here.

UPDATES

(Front Range Equine Rescue v. Christiansen)  The plaintiffs requested dismissal of the complaints in the District Court of Northern California concerning the gathering of wild horses on the Modoc National Forest based on the new provision in the 2020 Interior-EPA Federal Budget authorization that prohibits the sale of wild horses without limitation (i.e. for slaughter) by the Forest Service.

(Rocky Mountain Wild v. Dallas) The District Court of Colorado issued an order granting a partial motion to dismiss concerning ANILCA in favor of the Forest Service concerning the Village of Wolf Creek Access 2019 Record of Decision (2019 ROD) on the Rio Grande National Forest.

NEW CASES

(Alliance for the Wild Rockies v. U.S. Forest Service)  The plaintiff filed a complaint in the District of Montana concerning the authorization of the Elk Smith Project on The Helena-Lewis & Clark National Forest and the programmatic ESA consultation for the wolverine.

(Center for Biological Diversity v. Bernhardt)  The plaintiffs filed a complaint in the District Court for the District of Columbia against the U.S. Fish and Wildlife Service and the Forest Service concerning the Upper Green River Area Rangeland Project on the Bridger-Teton National Forest, which plaintiffs allege unlawfully impacts the grizzly bear.  (Here’s CBD’s press release, and here’s another summary.)

NOTICE OF INTENT

Alliance for the Wild Rockies claims the Forest Service violated the Endangered Species Act regarding alleged violations of road restrictions over the prior five-year period on the Helena-Lewis & Clark National Forest and has not properly consulted on the effects on grizzly bears.  (Here’s a local news article.)

The Center for Biological Diversity intends to sue the U.S. Fish and Wildlife Service and the Forest Service concerning the expansion of the Lee Canyon Ski Area on the Humboldt-Toiyabe National Forest regarding its effects on the Mount Charleston Blue Butterfly.

The Center for Biological Diversity also intends to sue the U.S. Fish and Wildlife Service and the Forest Service concerning region-wide restoration project impacts on the Mexican Spotted Owl in Region 3.

 

BLOGGER’S BONUS

  • Ten-mile South Helena Project

(Update)  We’ve talked about this case a few times, including here, where the State of Montana’s intervention was mentioned.  The role of intervenors in settlements has come up before and I ran across this court’s treatment of that request in this case:

In granting the motion for intervention as a matter of right, the Court advises Montana that, while it may participate in settlement negotiations with the parties should such negotiations take place, its status as Defendant-Intervenor does not carry with it the right to prevent any settlement of plaintiffs’ or consolidated plaintiffs’ claims from occurring…

A preliminary injunction was denied in October.  Here is the plaintiff’s recent perspective on the ongoing project:

  “How does the Forest Service justify bulldozing new roads where they are not supposed to be?  Only by saying, “this feature is not a road.”

(New case against FWS.)  The Center for Biological Diversity and others have sued the U.S. Fish and Wildlife Service for failing (again) to protect wolverines as required by the Endangered Species Act.  Read more here.

  • Iron Mask sagebrush/juniper project

(Continuation of an existing case against BLM.)  According the Alliance for the Wild Rockies,

“The federal court agreed and halted the project last year because the BLM’s analysis was limited to the theoretical positive effects but did not analyze the overwhelming negative effects of burning sagebrush-juniper habitat on wildlife. Ignoring the court’s order, the Trump administration now wants to go forward to benefit a few cattle ranchers without analyzing the damage their project will have on public lands and a wide variety of native wildlife.

(Court decision involving EPA.)  The First Circuit Court of Appeals found that under the Federal Advisory Committee Act, the EPA must ensure that its science advisory committees are sufficiently balanced so that they can provide independent advice.

(Potential lawsuit.)  Monroe County, Indiana has approved the use of its attorneys to challenge a project on the Hoosier National Forest that could affect its municipal watershed.

(New case against FWS.)  The Buffalo Field Campaign, Friends of Animals, and Western Watersheds Project have sued the U. S. Fish and Wildlife Service for determining that the bison (which seasonally uses a portion of the Custer-Gallatin National Forest) does not warrant listing under the Endangered Species Act.

(Court decision involving BLM.)  In a case involving the State of California and other plaintiffs, the Trump administration didn’t break the law when it scrapped an Obama-era regulation for fracking on public and tribal lands.