Jon Haber

Nez Perce-Clearwater plan revision alternatives

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On a recent thread about getting land management decision “right,” I criticized an agency strategy of not identifying a preferred alternative in a draft EIS , using an example from BLM travel planning.  I said I was seeing more or this in land management planning, and here is an example from the Nez Perce-Clearwater forest plan revision.

A preferred alternative is not identified in the DEIS. Any individual component of any alternative analyzed in the DEIS may be combined into a preferred alternative. A preferred alternative will be identified with the release of the Final Environmental Impact Statement and Draft Record of Decision in 2021.

The link is to the DEIS Executive Summary, and here is their range of alternatives:

Four action alternatives were developed based on internal and external input, including collaboration on alternative development. All alternatives analyzed in the draft environmental impact statement met a minimum bar of being ecologically, socially, and economically sustainable per the 2012 planning rule. Furthermore, each alternative contributes to rural prosperity and other Department of Agriculture Strategic Goals. Alternative themes and the thought process behind their development are described below:

Alternative W

Resources and land allocation on the Nez Perce-Clearwater are not mutually exclusive. It may be possible to have high levels of timber harvest; sustain rural economies; recover fish and wildlife species listed within the Endangered Species Act; provide clean air and clean water; and provide habitat for viable populations of wildlife species all at the same time. For instance, areas evaluated for recommended wilderness are independent from most areas that provide for timber harvest due to the Idaho Roadless Rule. As such, it is possible to recommend all or nearly all Idaho Roadless Rule areas for recommended wilderness and have a very high level of timber outputs. Alternative W is a “have it most” alternative. The intent is to couple items that may otherwise be viewed as being mutually exclusive. This alternative has higher levels of recommended wilderness coupled with a higher timber output and a faster rate of movement towards forest vegetation desired conditions. Forest vegetation desired conditions would be minimally met within thirty years. Areas not selected as recommended wilderness allow for motorized use, including within Idaho Roadless Rule areas. Wild and Scenic Rivers found suitable stem from a collaborative approach that looks at rivers outside the wilderness.

Alternative X

Alternative X responds to a number of state and local plans, which call for few or no areas of recommended wilderness fewer or no suitable wild and scenic rivers and higher timber outputs. In this alternative zero areas are recommended as wilderness. The Comprehensive Water Plan is used as a surrogate to continue to protect key tributaries to the North and South Fork Clearwater Rivers while not pursuing Wild and Scenic River Suitable status on any river. Forest vegetation would be within the lower bound of the desired conditions within twenty years. Alternative X has the highest timber output, including a departure from the Sustained Yield Limit (SYL) for a period of two decades at 241-261 million board feet annually.

Alternative Y

Alternative Y provides for intermediate level of recommended wilderness and moves towards forest vegetative desired conditions in fifty years. Historic snowmobiling areas in the Great Burn are removed from consideration as recommended wilderness resulting in a boundary change, but within the areas moving forward as recommended wilderness we do not authorize any uses that may preclude designation as wilderness in the future. This alternative also looks at the major rivers not designated in the Wild and Scenic Rivers Act as suitable for inclusion in the Wild and Scenic River system. The major rivers not designated include the North Fork Clearwater and South Fork Clearwater.

Alternative Z

Alternative Z responds to requests to have an alternative in which natural processes dominate over anthropogenic influence. In this alternative a proposal for recommended wilderness that was brought forward by a group of national and state wilderness advocacy groups was mostly carried forward. Additionally, rivers were viewed as part of a larger system and major tributaries to the Nez PerceClearwater’s largest rivers will be analyzed as being suitable for inclusion in the wild and scenic rivers system. Areas in Idaho Roadless Rule Areas will not be opened up for additional motorized use and most current motorized use would not be impacted. Reliance on natural process would warrant a slower movement towards forest vegetation desired conditions within an anticipated one-hundred-years or longer. Timber outputs would also be lower and near a lower threshold needed to provide for economic sustainability and sustain rural economies. Additional plan components related to snag guidelines, live tree retention, fisher habitat, and elk security are included that limit uncertainty regarding how and where these features will be located on the landscape.

According to the forest supervisor in this article, “Emphasized in this planning process is the alternatives were put together as building blocks, Probert said, so pieces could potentially be mixed and matched to provide better combinations.”

My question is does it facilitate public comments, or more generally facilitate the process, to not identify a preferred alternative? This range of alternatives seems reasonable.  It is based primarily on varying how “designated areas” would be identified and recommended (wilderness and wild and scenic rivers) and managed (inventoried roadless areas, including addressing motorized and mechanized recreation), and how actively or passively the vegetation would be managed.  I’ve suggested something along these lines, and maybe if all the alternatives are truly reasonable and focused on the most relevant issues, it would be possible for an agency to not have a preferred alternative.   But is it a problem that the final preferred alternative doesn’t look much like any of the alternatives offered for public comments?  Still, I’m skeptical that the Nez Perce-Clearwater doesn’t care, and if they do, the law requires that they tell the public.

NFS Litigation Weekly January 10, 2020

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The Forest Service summaries are here:  Litigation Weekly January 10, 2020_Final Email

They have not attached any supporting documents this time, but the summaries are longer.  I’ve added a short overview here.

COURT DECISIONS

  • Idaho Conservation League and Greater Yellowstone Coalition v. U.S. Forest Service, et al. (D. Idaho)

The district court remanded the decision to the Forest Service to consider the impacts of the Kilgore Exploration Project (a 5-year mining exploration project) on the Caribou-Targhee National Forest  on groundwater and derivative impacts on stream water quality and Yellowstone cutthroat trout.  Here is the court’s opinion.

NEW CASES

  • Short et al v. Federal Highway Administration (D. N.D.)

Plaintiff landowners claim NEPA and historic preservation violations for the Little Missouri Crossing Road and Bridge project, which encroaches on and crosses the Little Missouri National Grassland of the Dakota Prairie Grassland.  (The Forest Service was named as a non-signatory cooperating agency.)

NOTICES OF INTENT

  • Sawtooth National Forest trail

Sawtooth Mountain Ranch LLC sent two 60 Day Notices of Intent to Sue pursuant the Endangered Species Act and Clean Water Act regarding the construction of the Redfish to Stanley Trail in the Sawtooth National Recreation Area near the Salmon River.  The District Court of Idaho has already denied a preliminary injunction based on other issues.

  • Forest plans in Region 3

WildEarth Guardians sent six 60-day notices of intent to sue claiming the US Fish and Wildlife Service and Forest Service failed to comply with the Endangered Species Act when they consulted on the effects of Forest Plans on the Mexican spotted Owl and designated critical habitat on the Apache-Sitgreaves, Cibola, Coconino, Coronado, and Prescott National Forests.  They state that new information also requires reinitiation of consultation on the Kaibab National Forest Plan.

(These are the same plaintiffs who brought the lawsuit against other Region 3 national forests that led to an injunction against many projects resulting from failure to monitor Mexican spotted owls, discussed here and elsewhere.  The FWS recently filed a new biological opinions intended to remove the injunctions on those forests, as described here:  “Forest management strategies now focus more on ecology and a “return to pre-settlement fire regimes, both of which have potential to benefit the spotted owl” instead of more commodity-based management including commercial timber harvest, the biological opinion states.”  The new NOI involves forests not subject to the current injunction.)

  • Idaho Panhandle timber project

Alliance for the Wild Rockies and Friends of the Clearwater sent a 60-day Notice of Intent to Sue pursuant to the Endangered Species Act for  determining that the Brebner Flat Project would have no effect on grizzly bears and Canada lynx and therefore not consulting with the Fish and Wildlife Service.

Now what happens when a new species on a national forest is listed under ESA?

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Once upon a time, when a new species was listed under ESA, the Forest Service was required to reinitiate consultation on its forest plan regarding the effects of the plan on the species.  Projects were often held up while this was occurring.  As a result of the Cottonwood litigation, involving a new designation of critical habitat for Canada lynx, the law was recently changed so that neither new critical habitat nor listings require new consultation on existing forest plans (as discussed here).

The candy darter (CBD photo) was listed as endangered in late 2018 and it is found on the Monongahela National Forest.  The Center for Biological Diversity provided this news release regarding a proposed timber sale in a watershed where the species is found and where critical habitat for it is being considered:

The U.S. Forest Service this week announced it will withdraw a 2,400-acre logging project in West Virginia’s Monongahela National Forest following objections raised by conservation groups about harm to an endangered fish.

The project would likely have caused significant erosion and sent sediment into rivers and streams, threatening the rare fish and other animals.

“Friends of Blackwater and all of our supporters are very pleased that the Monongahela National Forest supervisor has withdrawn the Big Rock Timber Project proposal,” said Judy Rodd, director of Friends of Blackwater. “Hopefully this is a step toward fully protecting the candy darter, a tiny jewel of a fish found in the timbering proposal area, near the world-famous Cranberry Glades.”

The Forest Service announcement said the project would have been the first of its kind to require formal consultation under the Endangered Species Act for the brightly colored candy darter, which was listed as endangered in November 2018. The Fish and Wildlife Service would have had to calculate how many, if any, candy darters could be killed or harmed by the proposed project. The Fish and Wildlife Service also plans to include portions of the logging project area in its final designation of the fish’s critical habitat. Those issues contributed to the decision to pull the project.

Presumably the Monongahela has come to a full stop on projects that may affect the darter, while they figure out a strategy for consulting with the Fish and Wildlife Service.  This is pretty close to the same result that would have occurred without the “Cottonwood fix.”  This is a situation where consultation on a forest plan has proven beneficial.  It should result in a species conservation strategy that “fully protects” the species’ habitat on the forest that the FWS supports and that can be included in the forest plan.  The FWS may then rely on the forest plan decisions and their biological opinion for analysis of its overall effects, which would simplify and streamline the consultation process for projects.

Post-Cottonwood, they could now choose instead to proceed on an individual project-by-project basis, but why?

(PS – This looks like an example where the administrative objection process prevented the Forest Service from losing a lawsuit.)

Failed planning for power lines on the Coconino

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(Modoc National Forest photo)

The Coconino National Forest Plan was revised in 2018.  They have just announced that a proposed powerline requires a forest plan amendment because, “The proposed power line and associated roads would not comply with the following forest plan guidance after all reasonable stipulations to minimize impacts are applied: ‘Management activities and permitted uses should be designed and implemented to maintain or move toward the desired SIOs.'” “SIOs” are “Scenic Integrity Objectives, which are forest plan components.  It also appears to conflict with several plan guidelines for special uses (though the letter doesn’t directly acknowledge that).  Nobody saw this coming during the recent plan revision?  Did the forest plan include things that really weren’t that important?  (Scenery doesn’t seem to often rise to the level of litigation.)  Is this just more “energy dominance” from the Trump administration?  The scoping letter doesn’t attempt to answer these kinds of questions.

This article includes a link to the scoping documents.  From the map, it looks like the power lines are needed as a shortcut, and is often the case, conservation lands are the easiest target.  All of the action alternatives would violate the forest plan.  A compliant alternative seems like an obvious omission.  (And there is a requirement for special use permits that locations off of the national forest be not feasible.)  While the Forest discusses burying  the line, it’s not clear that they are considering an alternative that would bury all of it in areas where it is not consistent with the scenery objectives, or whether doing so would meet them.  Of course we can’t actually tell exactly where it would violate those objectives because the scoping letter doesn’t distinguish between the areas where the objectives are “high” or “moderate,” but maybe it’s the entire route.  While the amendment would be “project specific,” meaning it wouldn’t affect future projects, does that make any sense if the landscape would no longer meet the objectives in the forest plan?  ( Some of the scenery management science is not intuitive to me.)  At least they included the amendment in scoping for the project (some have popped that out at the last minute).

This summary dismissal of the forest plan unfortunately suggests a lack of respect given to forest plans and the effort put into them.  I don’t know anything about the scenery here, or who looks at it, but if it was important enough to put into a forest plan a couple of years ago, it seems like it should be important enough to take a little more seriously now.

Litigation updates that didn’t make the NFS litigation weekly

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(Update.)  The Custer Gallatin National Forest has done the additional work required after it lost this lawsuit (which we were discussing in 2012), and is seeking to lift the injunction, but plaintiffs still think effects on lynx habitat are a problem.

(Update and NOI.)  Plaintiffs who won the Pilgrim Project case on the Kootenai National Forest have issued over 100 notices of intent to sue on other projects on the Kootenai, Idaho Panhandle, and Lolo national forests where ineffective road closures may affect grizzly bears.  The Forest Service has appealed the Pilgrim case, but has also reinitiated ESA consultation on 37 projects.

(Update.)  The 9th Circuit Court of Appeals heard an appeal from two environmental groups that have sued to stop the project to thin/log the insect-infested forest along the Lostine River Road.  This 2017 case was discussed here.

  • Sage grouse

(Update.)  The government and defendant intervenors have appealed to the 9th Circuit the district court’s injunction of the 2019 sage grouse amendments to BLM and Forest Service plans.  This Western Watersheds case was discussed most recently here.  Also, as a result of that district court decision, another sage grouse case filed by ranchers against the 2015 sage grouse amendments is proceeding, and environmental groups are seeking to intervene.

(No objection!)  The Forest prepared a forest-wide EIS for removal of juniper to achieve a desired (historic) distribution of juniper and aspen.  The Grand Canyon Trust said it wasn’t much different from what they would like to see.  Chaining is allowed by the decision – compare to our discussion of that here.

 

Forest planning end-of-year update

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In keeping with its long tradition, the Forest Service has provided gifts to the public of work to do over the holidays on forest plans.  (At least there’s no government shutdown to complicate the math this year.)

The Tonto National Forest on December 13 released a draft revised land management plan and draft environmental impact statement for public review and comment.   The comment period ends March 12.

Environmental groups took issue with the December 20 release of the Nez Perce-Clearwater National Forest draft forest plan revision and environmental impact statement, writing to the forest supervisor that it effectively removes about two weeks from the 90-day comment period.

While the draft revised  Nantahala and Pisgah National Forest Plan was also scheduled to come out in December, it is now expected in February.

Meanwhile, the Bitterroot National Forest may have given up on revising its 32 year old forest plan.  It started a 30-day comment period on December 17 for a proposed plan amendment to address elk management.  (Oddly, the scoping letter indicates that they seem to think they can change elk management without the substantive requirements for other species being “directly related.”)

Happy new decade of forest planning!

 

NFS Litigation Weekly December 20, 2019

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Forest Service summary (click on the highlighted bullets to see the documents provided by the Forest Service):  Litigation Weekly December 20 2019_Final

COURT DECISIONS

The District Court of Montana issued an order denying plaintiffs’ motion for preliminary injunction against the 2019 Yellowstone bison hunt on the Custer Gallatin National Forest.  However, the 9th Circuit Court of Appeals has reversed a lower court ruling from February that dismissed a lawsuit from the Cottonwood Environmental Law Center on Yellowstone bison management.

The District Court of Idaho upheld the Windy Shingle project on the Nez Perce-Clearwater National Forests involving the Healthy Forest Restoration Act and other requirements.

The District Court of Colorado suspended Applications for Permits to Drill on the Grand Mesa, Uncompahgre, and Gunnison National Forests until they complete an analysis of the reasonably foreseeable indirect impacts of oil and gas.

NEW CASES

The State of Montana filed an amended complaint against the Defendants, which includes the Forest Service, claiming the State of Montana owns title to submerged lands also claimed by Defendants for former hydropower sites on the Madison, Missouri and Clark Fork Rivers.

The plaintiff filed a complaint in the District Court of Utah against the Forest Service concerning the issuance of term and temporary grazing permits on the Kingston, Forshea and Manning Creek Allotments on Monroe Mountain within the Fishlake National Forest for the 2019 grazing season.  (A more colorful version of the story may be found here:  “This lawsuit claims these Utah ranchers, like Bundy, don’t recognize the authority of the federal government and have snubbed grazing requirements for years.”)

The plaintiff filed a complaint in the District Court of Montana against the Forest Service concerning the Flathead National Forest 2018 revised Forest Plan and the Lolo, Helena-Lewis & Clark and Kootenai National Forests amendments for grizzly bears.  (While, it may be hard to tell from his pro se complaint what the plaintiff’s interest is, this is from the sometime state legislator’s blog:  “Policies that I am against are taking out our roads and allowing our forests to be downgraded and such policies are resulting in fires that are destroying our property and Killing our wildlife!”)

NOTICE OF INTENT

Plaintiffs sent a renewed 60-day Notice of intent to Sue pursuant to the Endangered Species Act regarding the Rock Creek Mine project on the Kootenai National Forest after the Fish and Wildlife Service completed a “Supplement to the Biological Opinion” in November of 2019.

OTHER AGENCY CASES

The plaintiffs filed a complaint in the District Court for the District of Columbia against the National Park Service and the Department of Interior concerning the use of motorized electric bicycles within the National Park System.

Litigation news from November

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The Forest Service report hasn’t shown up for awhile, so here’s a few court stories you may have missed.

New case:  The Western Shoshone Defense Project sued the BLM over its decision to permit the Mt. Hope molybdenum mine.  (They are following the model used against the Forest Service to enjoin the Rosemont mine in Arizona; that district court decision is described here.)

Court decision:  A federal judge blocked the West Elk Coal Mine’s plans to expand by 2,000 acres into the Gunnison National Forest’s Sunset Roadless Area because of NEPA violations involving methane capture and effects on streams.

New case:  The Stop B2H Coalition and Greater Hells Canyon Council have filed a lawsuit seeking to block the proposed Boardman-to-Hemingway power transmission line, which would cross the Wallowa-Whitman National Forest.

TRO granted:  A judge has granted a temporary restraining order to prevent salvage logging operations on four of the six projects at issue in this case involving the road maintenance categorical exclusion (introduced here).

TRO denied:  A plea to halt Montana’s winter bison hunt on the Custer-Gallatin National Forest has been denied by a D.C. District Court judge, who also moved the case to Montana.

Court decision:  A D. C. District Court judge found the presidential proclamation expanding Cascade-Siskiyou National Monument is “invalid and unenforceable” for the O&C Lands, as is the BLM forest management plan that placed about three-fourths of the O&C Land base into old growth and riparian reserves.  (The latter decision conflicts with an earlier decision in Oregon federal court.)

Court decision:  Jurors in Oregon found in favor of 14 counties and their $1 billion lawsuit claiming the state deprived them of revenue for decades by limiting logging in state forests.

Court decision:  We’ve had some discussion of whether the Federal Advisory Committee Act has any teeth, including requirements for the make-up of the committee. This decision from September involves the Department of the Interior’s International Wildlife Conservation Council, “an advisory body composed primarily of trophy-hunting profiteers and firearm manufacturers.”  Plaintiffs:  “The court’s ruling allows us to continue challenging the illegal creation and operation of the IWCC …”

Condition-based project in Georgia

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We’ve discussed “condition-based” NEPA analysis and its legal implications – mostly thinking about timber management.  Here’s the Foothills Landscape Project, affecting 157,000 acres on the Chatahoochee-Oconee National Forest.  It raises the usual concerns about  NEPA sufficiency (it’s an EA, which was a key factor in the Tongass case injunction).  Here’s how it works, according to the EA:

The locations and timing of treatments would continue to be selected and prioritized using a systematic process that evaluates restoration needs, determines appropriate treatments to address those needs (through use of decision matrices) and balances implementation of those activities with operational feasibility, agency capacity, and social considerations, to the extent possible.

But apparently no further consideration of environmental impacts.  Here’s a statement that caught my eye, because the whole point of NEPA (as stated in many court opinions) is to analyze effects before you take action, whereas it sure looks like their intent is to act and then see what the effects are:

If, as a result of monitoring, the effects of activities require management or maintenance treatments that fall outside of the treatment toolbox options assessed within this EA and the forthcoming decision, additional analyses could be warranted.

I’ve also got NFMA concerns if what they are doing is establishing new long-term management direction (which should be in a forest plan) without going through the forest planning process.  How are “project design” requirements different from forest plan standards?

But what was new to me was the application to developed recreation sites, as described here:

On the recreation side, the project looks to make strides to improve the visitors’ experiences by enhancing existing trails and campsites that are used heavily while closing those that are not rarely used and no longer sustainable.
“We don’t have any specific proposals in any specific campground, but we are going to look at the conditions in areas that make sense … “We don’t have a lot of hard proposals, but basically we just want to make investments in areas that have high resource protection and high visitors’ satisfaction,” Grambley said. “We’re proposing reroutes to properly layout trails because we realize that a lot of our trails go straight up a ridgeline and we don’t want that because it causes erosion and it’s not fun to hike quite honestly. So we want to make the trails more sustainable and more-friendly layouts.”

These sound like the kinds of priorities that a forest plan should establish.  But when we want to implement them?  Just trust us to know what “makes sense.”

 

Winter motorized recreation planning – behind the curve again?

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credit

The trend continues – technology makes it easier for more people to get farther into the less trammeled  parts of public lands.  Good planning would project future changes in technology over the life of a plan and – plan for it.  I haven’t researched this question directly, but my impression is that winter travel planning (required by Forest Service regulations) mostly responds to the current state of technology.  I’ve even seen statements like, “we don’t need to worry about closing these areas,” or at least “we don’t need to worry about people complaining if we close these areas,” because people can’t get to them.  What happens when that is no longer true?  NEPA requires consideration of new information relevant to environmental impacts, which may lead to changing a decision.

“Snowbikes” – I imagine there are some national forests that ought to be thinking about going back to the drawing board on their winter travel management plans (and maybe forest plans).  Especially where there are snow-dependent species like lynx and wolverine that are listed under ESA (where new information must be consulted on) or at risk of being listed (and regulatory mechanisms are a consideration).

“After Polaris bought Timbersled in 2015, that’s when things took off,”

“The snowbike market is in its infancy right now, but it’s exploding,”

“It’s a riot,”  “You can make your own line wherever you want to go.”

 

“They’re so agile,”  “You’re able to get into places you never would get into with a snowmobile.”

“It’s just like riding a dirt bike in the woods,”

“For those who have never ridden a snow bike, the best analogy I can think of is this; it is like riding a Jet Ski on sand dunes. There is a freedom unlike anything else I have ever done.”