Jon Haber

Environmental investors fund fuel reduction projects

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Here’s how it works: Investors buy into the bond, and the money is drawn as needed for forest restoration work. This includes thinning, strategic backfires and other rehabilitation. In this first case, it was a $4 million bond with money from CSAA Insurance, Maryland-based investment firm Calvert Impact Capital, The Rockefeller Foundation, and the Gordon and Betty Moore Foundation.

The investors are paid back over five years, with 4% interest, by those who benefit from the work and have contracted with Blue Forest, like the U.S. Forest Service and state agencies. In this case, payments will come from the Yuba Water Agency, whose reservoirs receive water from the forest and the California Department of Forestry and Fire Protection.

And the bond couldn’t come at a better time in the investor community, as an increasingly popular trend of socially conscious investing is taking off. It’s called ESG, which stands for environmental, social and corporate governance. It focuses on investing for the greater good; in this case, buying into the health of the forest but still making money.

It is exactly the kind of investment Jennifer Pryce, CEO of Calvert Impact Capital, says her clients want.

“Our investors are looking for an impact and a financial return, and this is off the charts when you look at what it’s giving back,” said Pryce, who polls investors each year to see how they want to align their capital with their values. “Fighting climate change is No. 1.”

She admits this one was a difficult sell because it is designed to prevent fires, rather than fight them. Still, once the possibilities and savings were made clear, the investors were in.

It’s not exactly “fighting climate change” either.  I wonder what else might get lost in translation, and would the “environmental” investors necessarily like the “other rehabilitation” that the Forest Service decides to fund with their money, and whether there are any restrictions on what an agency could use the funds for.  An interesting concept though …

NFS Litigation Weekly October 25, 2019

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Forest Service summaries:  000000_2019_10_25_Litigation Weekly

COURT DECISIONS

The district court denied the plaintiffs’ Motion for Preliminary Injunction sought for the Tenmile South Helena Timber Management Project on the Helena-Lewis and Clark National Forest.  (D. Mont.)

LITIGATION UPDATE

The district court approved a stipulation to modify the injunction against projects affecting Mexican spotted owls pending further consultation with the USFWS.  (D. Ariz.)  Discussed in detail here and here.

NEW CASES

Plaintiffs contend the Forest Service is asserting federal ownership of Plaintiff’s ten acres adjacent to the White River National Forest.  (Court of Federal Claims)

This case involves several projects related to the Ranch Fire on the Mendocino National Forest and Barryessa-Snow Mountain National Monument where the Forest Service has used a categorical exclusion for road maintenance to salvage timber from 7000 acres.  (D. N.D. Cal.)  A similar case was discussed here.

Plaintiffs claim violations of NEPA and NFMA for the Mission Restoration Project and Forest Plan Amendment #59, which authorized logging, burning, and road building on the Okanogan-Wenatchee National Forest based on an EA.  (E. D. Wash.)

This lawsuit was filed against the National Park Service and the Forest Service concerning the continued allowance of hunting bison that have migrated out of the Yellowstone National Park to the Custer Gallatin National Forest.  (D. D.C.)  Here’s a background article.

NOTICES OF INTENT

Grazing permittees assert that a biological opinion by the National Marine Fisheries Service addressing 29 allotments on the Malheur National Forest violated the ESA.

The Alliance for the Wild Rockies has supplemented its NOI for the Hanna Flats Project on the Idaho Panhandle National Forest to include violations of ESA associated with consultation on grizzly bears for the forest plan Access Amendment.  (This may be related to the outcome of the Pilgrim lawsuit, discussed here.)

OTHER AGENCIES

The district court has enjoined the BLM from implementing the 2019 BLM Sage-Grouse Plan Amendments because of NEPA violations.  This was explained here.

 

AND MORE FROM THE BLOGGER

  • BLM Grazing

The Western Watersheds Project has filed a lawsuit seeking information (presumably via FOIA) from the BLM about a 2017 grazing initiative affecting six states.  Also, a new lawsuit was filed that challenges parts of the 2019 sage-grouse amendment that allow grazing of research natural areas.  

A court has remanded the decision by the FWS that the species is warranted for listing but precluded by higher priorities for an explanation of why its priority was lowered.  The species is found in high-elevation streams and lakes of the Rio Grande, Canadian and Pecos rivers in Colorado and New Mexico.

  • Mining

The Idaho Conservation League and Greater Yellowstone Coalition are asking a federal court to stop the Kilgore Gold Project on the Caribou-Targhee National Forest.   In Montana, the district court refused to dismiss claims against the Rock Creek Mine on the Kootenai National Forest.

  • Oregon state forests

Counties and other taxing districts have sued because the state has not managed forests for the most long-term, sustainable income as required in a decades-old contract.  Instead, the state is operating under a management plan based on a definition of greatest forest value that includes factors such as recreation, wildlife enhancement and water quality.  Meanwhile, the state is trying to develop a new plan that would gradually increase the number of harvestable acres after adopting a habitat conservation plan for at-risk species.

Trump makes life more dangerous for public land managers

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A GAO Report released Monday documents incidents where employees of the Forest Service, BLM, Fish and Wildlife Service and National Park Service were threatened or assaulted.  The security review was requested by the Democratic chairman of the U.S House Natural Resources Committee, Rep. Raul Grijalva, and there is a hearing today before a House subcommittee.  According to Snopes (so it must be true):

Grijalva said the findings underscore growing concerns over the safety of government workers on public land.  The Arizona lawmaker also criticized the Trump administration’s appointment of Bureau of Land Management Acting Director William “Perry” Pendley, who has expressed support for Nevada rancher Cliven Bundy. Bundy’s family played central roles in a 2014 standoff over grazing fees in Nevada and the 2016 occupation of Oregon’s Malheur National Wildlife Refuge.  “Making a folk hero out of Bundy, that sets a dangerous precedent,” Grijalva said. “At the top of the agency, they reinforce and embolden some of these actions by doing nothing and previously being in support of them.”

Professor John Freemuth, an expert on U.S. land policies at Boise State University, said it was true that the Trump administration’s pro-development policies could help quiet resentments toward the government. But Freemuth added that anti-government rhetoric also gets legitimized when it’s espoused by prominent figures.

Also, as the Washington Post points out:

President Trump demonstrated his position last year on those anti-government ideologues who violate federal facilities, and it is not a comforting one for federal employees.  He pardoned two men whose convictions on public-land arson charges helped ignite the six-week Malheur National Wildlife Refuge occupation in Oregon in 2016. He absolved Dwight Hammond Jr. and Steven Hammond, father-and-son cattle ranchers in southeastern Oregon whose convictions carried mandatory five-year sentences.

In a formal response to the GAO report, Interior Department Assistant Secretary Scott Cameron agreed with recommendations to carry out security assessments at hundreds of government facilities. In a separate response, Forest Service Chief Victoria Christiansen also agreed with the recommendation for security review.  Neither response gave details on when the security work would occur.

It’s a tough time to work for the “deep state.”

Trump Administration sage-grouse plans stopped

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The district court for Idaho has enjoined the Trump Administration’s attempt to cut back protection of sage-grouse on BLM lands in Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon from that provided by plan amendments in 2015. (A similar decision has been pending for national forest plans.) The changes made in the 2019 amendments to BLM land management plans can not be implemented, and the provisions in the 2015 amendments will apply (projects must be consistent with the 2015 amendments) until the case is decided on the merits.  (A link to the opinion is included with this news release.)

Moreover, the court telegraphed the merits pretty clearly:

“… the plaintiffs will likely succeed in showing that (1) the 2019 Plan Amendments contained substantial reductions in protections for the sage grouse (compared to the 2015 Plans) without justification; (2) The EISs failed to comply with NEPA’s requirement that reasonable alternatives be considered; (3) The EISs failed to contain a sufficient cumulative impacts analysis as required by NEPA; (4) The EISs failed to take the required “hard look” at the environmental consequences of the 2019 Plan Amendments; and (5) Supplemental Draft EISs should have been issued as required by NEPA when the BLM decided to eliminate mandatory compensatory mitigation.”

(1) “The stated purpose of the 2019 Plan Amendments was to enhance cooperation between the BLM and the States by modifying the BLM’s protections for sage grouse to better align with plans developed by the States. While this is a purpose well-within the agency’s discretion, the effect on the ground was to substantially reduce protections for sage grouse without any explanation that the reductions were justified by, say, changes in habitat, improvement in population numbers, or revisions to the best science contained in the NTT and CTO Reports.” The agencies did not fulfill their duty to explain why they are now making a different decision based on the same facts.

(2) The no-action alternative did not meet the purpose and need, and there was only one action alternative. “Common sense and this record demonstrate that mid-range alternatives were available that would contain more protections for sage grouse than this single proposal.”

(3) The BLM prepared six EISs based on state boundaries, but failed to provide the “robust” cumulative effects analysis this situation required. In particular, “connectivity of habitat – requires a large-scale analysis that transcends the boundaries of any single State.”

(4) “Certainly, the BLM is entitled to align its actions with the State plans, but when the BLM substantially reduces protections for sage grouse contrary to the best science and the concerns of other agencies, there must be some analysis and justification – a hard look – in the NEPA documents.” The court took particular note of the EPA comments that were ignored, and Fish and Wildlife Service endorsement of the 2015 amendments in deciding not to list the species under ESA because they adopted scientific recommendations (see below).

(5) Compensatory mitigation measures were eliminated after the draft EIS, which “appears to constitute both “substantial changes” to its proposed action and “significant new circumstances” requiring a supplemental EIS.

The case provides a good example of how science is considered by a court, which allowed declarations from outside experts to determine if relevant environmental consequences were ignored. The court relied heavily on earlier scientific reports that included normative “recommendations,” but the court focused on their scientific conclusions, such as “surface-disturbing energy or mineral development within priority sage-grouse habitats is not consistent with the goal to maintain or increase populations or distribution,” and “protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer.” The Final EISs stated that there would be no measurable effects or they would be beneficial to sage-grouse, but the BLM either had no analysis or ignored this contrary information.

 

NFS Litigation Weekly October 2 & 9, 2019

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Forest Service summaries (which I have summarized further below):  0000000_2019_10_09_Litigation Weekly Email

COURT DECISIONS

The district court found plaintiffs lacked standing to challenge the NorthMet Project Land Exchange to allowing copper mining on the Superior National Forest.  (D. Minn.)  This case is discussed here.

The district court held that the administration of a special use permit for dam infrastructure on the Ocala National Forest is not subject to judicial review.  (M.D. Fla.)

The district court denied the government’s motion to dismiss or transfer to multiple courts the challenge to the 2015 decision by the BLM and FS to amend land management plan direction for sage-grouse affecting national forests in three regions.  (D. Idaho)

The district court remanded the decision on the Pilgrim Creek Timber Sale Project on the Kootenai National Forest to prepare a supplemental EIS and reinitiate consultation on grizzly bears regarding the effects of ineffective road closures.  The remand also requires reinitiation of consultation on the Forest’s “Access Amendment,” which is part of its revised forest plan.   (D. Mont.)  (More information is provided here.  An earlier court decision on similar issues on the same project was discussed here.)

UPDATES

The Supreme Court has agreed to hear this appeal of the order by the 4th Circuit Court of Appeals to vacate the Forest Service decision to permit construction of the pipeline across the George Washington and Monongahela National Forests and under the Appalachian Trail.

The district court denied a temporary restraining order regarding HUD’s authorizing the use of disaster relief funds to the Forest Service for logging on the Stanislaus National Forest and construction of a new biomass power plant.  (N.D. Cal.)

NEW CASES

The complaint concerns a second iteration of the Pettijohn Project on the Shasta-Trinity National Forest, and includes claims of ten statutory violations related primarily to northern spotted owls and old growth.  (E.D. Cal.)

The complaint alleges that the Bridger-Teton and Caribou-Targhee National Forests are improperly allowing mountain bike use in two wilderness study areas and motorized use in one of them.  (D. Wy.)  (Discussed on this blog here.)

NOTICES OF INTENT

Claim: The Pike and San Isabel National Forest failed to relocate a motorized trail out of an area where it would affect the federally listed greenback cutthroat trout as it had documented in a decision notice.  (Discussed on this blog here.)

Claim:  The Beaverhead-Deerlodge National Forest failed to initiate consultation regarding the effects on bull trout of operation of the Flint Creek Ditch and fish screen by the Montana Department of Natural Resources, as the decision notice on the East Fork Fish Creek Screen had stated.

Claim:  The analysis of effects on Canada lynx for the John Wood Forest Management Project on the Caribou-Targhee National Forest failed to meet requirements of ESA and NEPA.

 

BLOGGER’S BONUS

The Wilderness Society and Moncrief Oil and Gas Master LLC reached an out-of-court settlement resulting in the permanent retirement of a federal oil and gas lease in the Badger-Two Medicine area near Glacier National Park. The district court’s ruling and lease reinstatement had been appealed by multiple conservation, sportsmen and Blackfeet Nation stakeholders and their appeal was pending before the D.C. Circuit Court of Appeals when the settlement was reached. Williams (TWS), along with Peter Metcalf, executive director of the Glacier-Two Medicine Alliance, thanked the Wyss Foundation for its assistance in “making the lease retirement possible.”  This area has been previously discussed here (and I thought Sharon might be interested in this settlement).

Speaking of national monuments, the Western Environmental Law Center has filed a second lawsuit against the BLM for its decision to open 90% of this Monument to recreational target shooting, which has “irresponsibly damaged centuries-old saguaro cacti and irreplaceable petroglyphs.”

 

Tongass transition to young-growth – are we there yet?

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The Tongass National Forest is being managed under a 2016 amendment to its 2008 forest plan that addresses the Forest’s transition away from old-growth timber harvesting.  The amendment accelerated the transition in the plan from 32 years to 16 years, but there has been continuing controversy over how long that process should take.   Here’s the latest in an extended article from E&E News:

A new complication in the debate over the young-growth transition comes from Catherine Mater, a forest products engineer from Oregon who recently completed an inventory of 43 areas within the Tongass under a contract with the Forest Service’s Pacific Northwest Research Station. There’s enough young growth coming online to provide around 55 million board feet of timber annually for decades, she said, or more than double the total timber volume the service reported cut there in fiscal 2018. Mater found 138,760 acres of young growth — between 55 and 80 years old — suitable for harvest. All of it was within 800 feet of Forest Service roads and away from steep slopes and other environmentally sensitive areas.

Of course there’s still pushback from the “timber companies and industry-friendly politicians, who want more thinning and bigger clear cuts.”

What caught my attention though was these comments from the Tongass spokeswoman:

Forest Service managers stand by their estimates that the young-growth transition won’t be complete before 2033, Fenster said. “If, once the analysis is complete, it shows the projections in the forest plan were not valid, then the Forest Service would have to consider alternatives to incorporating new information into the forest plan estimates,” Fenster said.

The projected volume of young growth was a fundamental assumption in the 2016 amendment, so I don’t think the Forest has the option of ignoring how it could affect the decisions it made in the forest plan.

Lawsuit drives proposed changes in elk feeding permit

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The State of Wyoming has been feeding elk during the winter at several locations on the Bridger-Teton National Forest for decades.  Environmental plaintiffs challenged a 2016 decision to authorize the continued use of the Alkali Creek Feedground, and the court remanded the decision because of NEPA violations, as described here.

Rather than appealing or spending years studying the feedground’s impacts to address the judge’s concerns, the Forest Service and Wyoming wildlife managers came up with a plan that will allow emergency elk feeding on a smaller area for five years and then end the operation by 2024 (with a possible extension). That plan is now being “scoped” and is open for public comment.  The scoping letter is attached to this article.

This is an example of how litigation may lead to a better decision (after the appropriate public review process).  It appears to have made the State take a closer look at whether it really needed this feedground.  However, plaintiffs don’t appear to have been involved in the new proposal yet.  It’s also interesting that the original decision was based on an EIS/ROD, which the court found to be inadequate, but this is being proposed as a categorical exclusion (so maybe the Forest has an idea that they are not going to be challenged on it?).

NFS Litigation Weekly September 18 & 25, 2019

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Forest Service summaries:  2019_09_18 and 25_Litigation Weekly_Email

COURT DECISIONS

The district court invalidated the biological opinion on Mexican spotted owls prepared by the FWS for forest plans for the Lincoln, Santa Fe, Cibola, Carson, and Gila National Forests in New Mexico, and the Tonto National Forest in Arizona.  Timber management actions on these forests have been enjoined.  (D. Ariz.)  (See other discussions on this blog here and here.)

The district court issued a preliminary injunction for the Twin Mountain Timber Sale, which is part of the Prince of Wales Landscape Level Analysis Project on the Tongass National Forest, and involves the newly popular “condition-based analysis.”  (D. Alaska)  (We have discussed this case here.)

The district court granted the Forest Service’s motion for Summary Judgment regarding its Emergency Situation Determination for its decision to authorize the Cove Fire Salvage Project on the Modoc National Forest.  (E. D .Cal.)

NEW CASE

The plaintiffs claim HUD violated the National Environmental Policy Act (NEPA) when authorizing relief funds to the Forest Service for clear cutting activities and construction of a new biomass power plant utilizing the timber as feedstock following the 2013 Rim Fire on the Stanislaus National Forest.  (N. D. Cal.)

NOTICE OF INTENT

The parties have notified the Lincoln National Forest and the U. S. Fish and Wildlife Service of their intent to sue under the Endangered Species Act to reinitiate consultation to protect the New Mexico meadow jumping mouse from grazing activities on two allotments.

 

BLOGGER’S BONUS

Conservationists want a California judge to set aside Placer County’s approval of a 2.2-mile long gondola that would pass through the Tahoe national forest to connect the bases of Squaw Valley and Alpine Meadows ski resorts. About 20% of the project, including five of the towers, would be located on the Tahoe National Forest near the Granite Chief Wilderness Area.  The project won preliminary approval from the Forest Service earlier this year and is awaiting final approval after 12 organizations and individuals objected to their draft record of decision.

Conservation groups and a Native American tribe have sued the U.S. Army Corps of Engineers to challenge a key water permit allowing the PolyMet open-pit copper mine to move forward in Minnesota’s Superior National Forest.  Other related litigation was described here, here and here.

2016 election consequences for Colorado federal lands

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The Forest Service and Bureau of Land Management over the last several years have been developing long-term Resource Management Plans for more than 3 million acres of BLM lands in Eastern Colorado and the Uncompahgre Plateau and in the Rio Grande National Forest.  According to this article, the state and local communities are not happy.

The Trump-driven shift toward more oil and gas development on public lands worries Colorado politicians and conservation groups that are steering the state toward increased protections. Agencies within the same department seem in conflict. Long-studied plans are changing between between draft and final reports, with proposed protections fading away and opportunities for extraction growing…

“What we are seeing is the full effect — in proposed actions — of the 2016 election at the local level,” Ouray County Commissioner Ben Tisdel said.

The article goes into detail about the effects on the Uncompahgre Field Office’s proposed plan:

County commissioners from Gunnison, Ouray and San Miguel counties have filed protests with the BLM over the Uncompahgre Field Office’s proposed plan. The counties have been involved with the planning for eight years. In 2016, the counties submitted comments on the plan outlining concerns for the Gunnison sage grouse and listing parcels the agency should protect and retain as federal lands.

“Alternative E proposed doing all the things we specifically asked them not to do,” said Tisdel, the Ouray County commissioner, adding that lands his county wanted protected were listed in the 2019 plan for possible disposal by the agency. “We thought we had a pretty good product in 2016 and now we have this new alternative, Alternative E, that goes way beyond anything we had seen before and is awful in ways we never thought of before.”

With regard to the Rio Grande National Forest revised forest plan:

The move from that September 2017 Draft Environmental Impact Statement to the final version released in August has riled conservationists and sportsmen. Goals established for air quality, designated trails, fisheries management, fire management, wildlife connectivity and habitat were scaled back in between the draft and final versions.

Colorado’s governor has weighed in on the BLM plan (in language consistent with the Western Governors Association policies):

The resource management plan’s “failure to adopt commitments consistent with the state plans, policies and agreements hinders Colorado’s ability to meet its own goals and objectives for wildlife in the planning area,” Polis wrote.

The BLM had an interesting response:

“There is room to adjust within the RMP, which has a built-in adaptive management strategy,” he said. “We are ready to respond as the state’s plans are complete.”

So they plan to do whatever the state wants them to do later?  “Room to adjust within the RMP” appears to mean that they don’t have to go through a plan amendment process with the public, which seems unlikely to be legal for the kinds of changes the state appears to want.  (It definitely wouldn’t work for national forest plans.)

The Western Energy Alliance blames the governor for being late to the game:

It doesn’t get a complete do-over just because something new happens, like Gov. Polis issues a new order.”

But it does apparently get a complete do-over because a new federal government administration says so.  There may still be some legal process (e.g. NEPA) questions this raises.

Midwest timber wars revisited

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For the first time in nearly three decades, the Shawnee National Forest in Illinois has proposed a commercial timber harvest of mostly native oaks and hickories. And environmental activists whose high-profile fight against logging in the 1990s led to a 17-year moratorium are once again raising alarms.

Lisa Helmig, acting forest supervisor with the Shawnee National Forest, said the plan is rooted in the best available science about how to maintain the keystone oak ecosystem that is native to the Shawnee foothills.  “The oak ecosystem has been in place here in the central hardwood region for 5,000 years,” she said. But Helmig said the ecosystem is at risk due to a lack of natural or man-made disturbances, such as fire, storms and, yes, even logging. Without these disturbances, non-native, shade-tolerant sugar maple and beech trees sprout up and fill in the forest’s midstory, she said.

The activists have filed an objection, based largely on their past experience with timber harvest on the Forest.

The trees that have grown up to replace the harvested oaks and hickories are mostly 28-year-old stands of “undesirable” beeches and maples.  “When you think about how many oaks were here, it’s heart-wrenching,” Wallace said “Had they not cut the oaks, we’d have oaks here,” Stearns added. In addition to the Farview site, in their letter they write that we also returned to the North End Ecological Restoration project logged in Pope County in the late 1990s. “Little to no oak and hickory have been visibly restored.” They cited other examples, as well.

This is the root of their concern: What the Shawnee National Forest’s leadership claims is happening isn’t.

Asked about their concerns, Helmig said that her “gut reaction” is that the Forest Service likely didn’t follow through with what should be a multiphase treatment. Helmig said she’s confident that the Forest Service is committed to seeing (this) project through… “We have a wonderful silviculturist on staff now,” Helmig said. “He’s been here five years and is absolutely fantastic.”

Hopefully we can assume that there has been a science-based determination that ecological integrity requires regenerating some young oaks and hickories.  But implementation unfortunately still boils down to “trust us,” and “we’re different now.”   (But then the Forest evicted the media from the objection meeting, wrongly according to the Washington Office.)