Jon Haber

New Forest Service research confirms that today’s wildfires moderate future fires

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“The research results clearly indicate that wildland fire regulated the ignition and spread of later wildfire in all study areas.” This might tend to produce a “duh” response, but apparently nobody had really studied it.  Here is the Forest Service overview of their research project.

Here is what I found most interesting – the Forest Service recognizes that, “Those responsible for managing wildland fires often face extreme pressure to quickly extinguish blazes due to short-term impacts such as smoke pollution or lost timber resources,” and “Parks’ research serves as a reminder that wildland fire, under the right fuel and weather conditions, can act as an effective fuel treatment to improve forest health and prevent future blazes from becoming large, costly and more dangerous” (my emphasis).

It should also be a reminder that when the Forest Service designates an area as suitable for timber production, and bases timber targets on that, it creates an incentive to put fires out, which increases the likelihood of more costly, dangerous fires.  This cause and effect relationship needs to be disclosed in the environmental analysis for forest planning, where the timber suitability decision is made.

The effects (NEPA) of bake-sale (timber-sale) funding of restoration

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I  said here: “NEPA documents have started saying that cutting down trees is beneficial for the environment because it produces funding to replace culverts and the like. That may not be a defensible effects analysis.”

Sharon asked: “I don’t see why people need to say that at all in NEPA docs. Do you have examples?”

I do.  I’ll provide two here that I have encountered with forest plan revisions.

The Flathead revision FEIS provided very little useful information about aquatic effects, but it revealed this as part of their logic (p. 131, but their point seems to be that it doesn’t matter):

Although alternative D proposes more timber harvest and the potential to generate more Knutsen-Vandenberg revenue for restoration actions such as best management practices, road decommissioning, and culvert replacements that would benefit aquatics, it is anticipated that money would still be available from partnerships and appropriated watershed dollars to implement restoration projects regardless of how much money is generated from timber sales.

The Helena-Lewis and Clark was more to the point that it DOES matter in their revision DEIS (p. 71):

Alternative E would result in the highest volume of timber production and therefore have the potential to generate more money from timber receipts for restoration projects for watershed and fisheries. If more money is available from alternative E then there would be more short-term impacts from restoration projects but there would be more long-term gains

I think I have seen other better examples for projects that have stated that the proposed action is better for the environment than no action because the timber sale revenues will be used for restoration activities.  Maybe I’ll run across more examples, but I wanted to post this now so that others could contribute examples they are aware of.

So no, I don’t think they should include this in NEPA documents.  The problem is that effects disclosed in an EIS must be reasonably foreseeable.  If the funding process works in a way that makes money available but does not commit it to a specific use, then any effects are not reasonably foreseeable.  This is more obvious in the forest planning context because restoration is only a “potential” (to quote both examples above).  The result of including this kind of poorly substantiated assumption in an effects analysis is to distort the comparison of alternatives and to provide less meaningful information for the decision-maker and the public.  This tends to subvert the core purpose of NEPA.

NFS Litigation Weekly June 5, 2019

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Forest Service summaries:  2019_06_05_

COURT DECISIONS

Klamath-Siskiyou Wildlands v. Grantham (E. D. Cal.):  The district court essentially reversed itself on enjoining the Seiad-Horse Risk Reduction Project on the Klamath National Forest, staying that injunction while the project is appealed to the circuit court.  The court’s reasoning:

“While Plaintiffs raised substantial questions regarding at least one of their claims, the Court must defer to the Forest Service’s determination that without a stay the harm will become truly irreparable. The crux of this Court’s first order was the fact that only Plaintiffs were in jeopardy of irreparable harm. In light of Federal Defendant’s arguments in their newest motion, it is clear that Federal Defendants will face irreparable harm that — most critically in the Court’s analysis — will threaten the public safety should the injunction remain in place.”

The District of Montana dismissed a complaint filed in 2015, concerning the allotment management plans on 7 domestic sheep allotments on the Beaverhead Deerlodge National Forest, and the revised forest plan (D. Mont.)

Center for Biological Diversity v. USFS (9th Cir.):  The circuit court held that the district court has jurisdiction to hear an action brought under the citizen suit provision of Resource Conservation Recovery Act (RCRA) seeking to require the Forest Service to ban the use of lead shot that poses a threat to endangered California condors in the Kaibab National Forest.

Duhring Resource Company v. USA (3rd Cir.):  The circuit court remanded the case to the Western District of Pennsylvania district court to consider costs incurred due to delay of oil and gas operations on the Allegheny National Forest.  Another facet of this case was discussed here.

Wild Watershed v. Hurlocker (D. N.M.):  The District Court upheld the Hyde Park Wildland Urban Interface Project and the Pacheco Canyon Forest Resiliency Project on the Santa Fe National Forest.  It found that NEPA was not required prior to designation of areas under the 2014 Farm Bill HFRA amendment as insect and disease treatment areas, and the applicable statutory categorical exclusion does not require consideration of extraordinary circumstances or consideration of environmental impacts as would administrative CEs subject to NEPA requirements.  The projects met the HFRA requirements for protecting old growth, for use of best available science (for northern goshawk and Albert’s squirrel and for air pollution from burning) and for consistency with the forest plan.  Forest plan direction applicable to old growth did not apply because the treated stands did not meet the definition of old growth.

UPDATES

Sawtooth Mountain Ranch v. USFS (D. Idaho):  (No FS summary provided.)  Private landowners oppose the proposed Redfish to Stanley Trail on the Sawtooth National Forest (discussed here).

NEW CASES

Idaho State Snowmobile Association v. USFS (D. Idaho):  The Sawtooth National Forest prohibited snowmobile use on 85,266 acres of public land in the Fairfield Ranger District.

Friends of Animals v. Perdue (D. Colo.):  (No FS summary provided.)  Plaintiffs allege violation of Freedom of Information Act requirements to provide documents related to management of wild horses on the Tonto National Forest.

 

BLOGGER’S NOTE on the Klamath case

We discussed it extensively on this blog here, mostly regarding snags.  We didn’t discuss another issue in the case about compliance with the Northwest Forest Plan Aquatic Strategy. Here’s this court’s description of what is required:

In demonstrating ACS compliance, the Forest Service “must manage the riparian-dependent resources to maintain the existing condition or implement actions to restore conditions. The baseline from which to assess maintaining or restoring the condition is developed through a watershed analysis. Improvement relates to restoring biological and physical processes within their ranges of natural variability.” (SHAR_E_2158.) “In order to make the finding that a project or management action ‘meets’ or ‘does not prevent attainment’ of the Aquatic Conservation Strategy objectives, the analysis must include a description of the existing condition, a description of the range of natural variability of the important physical and biological components of a given watershed, and how the proposed project or management action maintains the existing condition or moves it within the range of natural variability.”

In the days of the Northwest Forest Plan development, ranges of natural variability were to be determined between the plan and project level, in the case of watershed conditions via a requirement for “watershed analysis.”  Under the 2012 Planning Rule, NRV is a plan-level requirement.  What makes the Flathead forest plan revision litigation so interesting is that the revised plan both omits NRV from its aquatic ecosystem plan components and removes the requirement for any analysis to identify it later (instead merely suggesting that monitoring would be used).  It may be a good way of avoiding problems with project compliance, but it raises serious questions about how well the plan meets its obligation to protect aquatic species.

Forest Service not sued on timber project

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I couldn’t find the project files for the Gatton’s Park fuels treatment project in the Upper Mimbres Valley on the Gila National Forest, but it seemed like it has a lot of features that make it a good example of how to not get sued –

The Nature Conservancy received an initial Collaborative Forest Restoration Program grant for planning the project from 2012 through 2014; when the National Environmental Policy Act process was finished, the Grant Soil and Water Conservation District was awarded an additional grant and took over implementation of the plan beginning in January 2018.

In addition to local residents and logging businesses, the county government, the Forest Service, firefighters, conservationists and wildlife habitat advocates are also seeing the benefit of working together.

So far, thinning has reduced fuels from 50 tons per acre down to 15 tons in treated parts of the 1,500-acre project area and reduced fuels by half in other treated parts of the project area — something that will give residents on the edge of the Gila Forest in the Gatton’s Park development, in particular, a better chance of surviving a wildfire without catastrophic damage. The border of forest land and developed land is known as a “wildland urban interface.”

Partido emphasized the difference between a regular timber contract and the current project. Both attain forest management goals, especially in the area of fire prevention, but the Collaborative Forest Restoration Program is more efficient. “There hasn’t been a timber sale in these parts since the 1950s,” Partido said.

Part of the silvicultural prescription provided by the Forest Service — the tree plan — also takes into account habitats for the threatened Mexican spotted owls in the Gila. Trees over certain diameters are left in place — as are trees with holes where owls might nest.

What happens to the trees that are cut? The two contractors are either bringing the logs to sawmills and making poles and other products out of them or turning them into wood chips — piles of which are regularly offered to anyone who wants to come pick them up, for free. “Some of the ponderosa logs will be brought to the Celebration campground and other campgrounds for people to use,” Carver said.

NFS Litigation Weekly May 30, 2019

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Forest Service summaries:  2019_05_30_Lit Weekly

 

NEW CASES

The complaint alleges unauthorized use of chainsaws in two wilderness areas on the San Juan and Rio Grande National Forests.  The case is being discussed on this blog, here and here. (D. Colo.)

Another lawsuit has been filed against the Rio Grande National Forest’s approval of access to private land that would allow development of the Village at Wolf Creek Ski area.  More on this dispute can be found here.  (D. Colo.)

 

BLOGGER’S BONUS (not included in the Forest Service summaries)

The district court denied a motion for injunction pending appeal to the Ninth Circuit of its decision to dissolve a prior injunction on the Miller West Fisher Project after the Kootenai National Forest had completed additional analysis.  That court decision was discussed here.  (D. Mont.)

The appeals court upheld a fire salvage and restoration project on the Modoc National Forest.  It found that the Forest adequately addressed effects on northern goshawks and Modoc suckers.  In relation to NFMA, it found that landscape conditions did not comply with the forest plan because of the fire rather than the proposed action, that required surveys were conducted, and other alleged requirements were discretionary guidelines.  (9th Cir.)

 

LATE BREAKING UPDATE (after the Forest Service summary was compiled)

A federal appeals court ordered a new hearing for environmental groups trying to ban the use of lead shot that they said poses a threat to endangered California condors in the Kaibab National Forest. The court held that the case is justiciable, and that because the district court dismissed for lack of jurisdiction, it never had the chance to consider the questions pertaining to contributor liability under the Resource Conservation and Recovery Act in the factual context presented by this case.  (9th Cir.)

(The return of the official) NFS Litigation Weekly May 22, 2019

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I’ll return to my role of providing a brief summary and links to the Forest Service summary and documents (with occasional additions and comments).  Some of these cases below were recently discussed here.

Forest Service summaries:  Litigation Weekly_2019_05_15_22_Distributed

 

COURT DECISIONS

Flathead National Forest, Beaver Creek Project.

The Plaintiffs had sought to compel the Forest Service to repair a broken security light and place picnic tables at the facility on the DBNF under the Federal Lands Recreation Enhancement Act (FLREA.  The 6th Circuit Court of Appeals ordered parties to provide evidence about the designations of the facility.

Introduced mountain goats, Manti-La Sal National Forest.

The 9th Circuit upheld the Kaibab National Forest Travel Management Plan permitting motorized big game retrieval.  The district court decision was discussed here.

The District of Montana dismissed a complaint filed in 2015, concerning the allotment management plans on 7 domestic sheep allotments on the Beaverhead Deerlodge National Forest, and the revised forest plan.

 

NEW CASES

This complaint alleges violations of NFMA and NEPA on the Cooper Creek Project on the Chattahoochee-Oconee National Forest.

Prince of Wales Landscape Level Analysis Project.

 

NOTICES OF INTENT

Western Watersheds Project states they plan to pursue litigation unless the FS initiates and completes new consultation with the USFWS over impacts from grazing to the Lahontan Cutthroat Trout on the Humboldt-Toiyabe National Forest.

This ESA NOI pertains to the second lawsuit against the Flathead National Forest revised forest plan.  A complaint was filed by the same plaintiffs on NFMA and NEPA issues on April 2.  The first lawsuit was discussed here.

  • Western Watersheds Project v. Schneider (no link)

Sage grouse plans.

 

OTHER AGENCIES

The Supreme Court ruled against the State of Wyoming on a case involving interpretation of an 1868 Treaty concerning hunting rights on “unoccupied lands of the United States ….”  This case was previously discussed here.

 

April-May litigation update

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Mountain goat removal (new decision)

Utah Native Plant Society v. U. S. Forest Service (10th Circuit)

The circuit affirmed the district court dismissal of an attempt to force the Manti-La Sal National Forest to remove mountain goats that the state of Utah had introduced to prevent them from harming a research natural area. It held that neither laws or regulations gave the Forest Service authority to prohibit the state action to introduce the goats on nearby state lands or to require a permit. It also held that, while the Forest Service had the authority to remove the mountain goats, it had not made a final decision on whether to do so, or to take other possible actions to protect the RNA, and therefore could not be sued.  This case was discussed previously here and here.

 

Hells Canyon grazing (new decision)

Greater Hells Canyon Council v. Stein (D. Or.)

Magistrate Judge Patricia Sullivan released her findings on a lawsuit (previously discussed here) brought by the Greater Hells Canyon Council claiming cattle grazing on the Hells Canyon allotments were imperiling the Spalding’s catchfly, a rare wildflower found only in the inland Northwest and listed as threatened under the Endangered Species Act. In her findings, Sullivan disagreed with the plaintiff’s assertions that the Forest Service lacked sufficient baseline monitoring data for the catchfly and that the agency was required to consider an alternative that would eliminate grazing in all areas where catchfly grow. Sullivan’s findings also denied the plaintiff’s claim that the Forest Service violated the Hells Canyon National Recreation Area Act.

 

Target shooting (settlement)

Los Padres ForestWatch v. U.S. Forest Service

The lawsuit alleged violations by the U.S. Forest Service of the National Forest Management Act and the Endangered Species Act from unregulated target shooting in the Los Padres National Forest (discussed here). A ban on unmanaged target shooting in the forest was approved as part of the forest plan in 2005, making it consistent with the three nearby national forests, but it was never implemented.  Under an agreement approved in U.S. District Court, the Forest Service will extend a temporary ban on target shooting outside of designated sites, and prepare studies and consult with federal wildlife agencies to assess and reduce the impacts of target shooting on rare and endangered plants and animals including the California condor, California red-legged frog, southern mountain buckwheat, and Kern mallow. A report also noted that target shooting has caused at least 53 wildfires in the Los Padres National Forest during the past 25 years.

 

Sage grouse plans (update)

Western Watersheds v. Schneider (D. Idaho)

The plaintiffs challenge 15 different Environmental Impact Statements (EISs) and their associated land use plans issued in 2015 that govern land covering ten western states. The EISs were issued as part of a National Planning Strategy by the BLM and Forest Service to update protections for sage grouse. This lawsuit was stayed for a lengthy period as the parties pursued settlement. But more recently, the BLM has issued amendments (referred to as the 2019 Amendments) to the 2015 Plans.  (The Forest Service has completed a DEIS for similar amendments.)  The court has granted plaintiffs’ motion to supplement their complaint to challenge the amendments as well as part of the ongoing case.

 

Rosemont copper mine (update)

A motion for a preliminary injunction was filed on May 15 pertaining to five lawsuits filed over the last two years against a proposed copper mine in the Santa Rita Mountains on the Coronado National Forest. A long article on what is involved and what has happened is here.

 

Idaho sheep experiment station (unsettlement/new case)

A previous case involving the experiment station on the Caribou-Targhee National Forest was discussed here (the settlement was discussed in a comment). In the prior settlement, the federal government agreed to prohibit grazing until a study was completed assessing the risk of domestic sheep transmitting diseases to bighorn sheep. The USDA completed an environmental analysis last summer and said last fall that it intended to resume grazing this year. A new lawsuit was filed in February to protect bighorns, grizzly bears, sage grouse and other wildlife.

 

Fremont-Winema grazing (new case)

The complaint filed by Concerned Friends of the Winema and four other groups marks the fourth case in about a decade alleging violations of federal statutes in the Antelope allotment. This lawsuit accuses the U.S. Forest Service of unlawfully approving a 10-year grazing permit for the allotment despite “irreparable harm” to the threatened Oregon spotted frog and wetland plants and mollusks.  An injunction was dissolved earlier this year in a previous lawsuit (discussed here).

 

Hammond brothers grazing permit (new case)

Conservation groups filed suit challenging former Interior secretary Ryan Zinke’s order to renew grazing permits for Oregon ranchers Dwight and Steven Hammond after BLM had cancelled them in 2014 when the agency determined they didn’t qualify for a renewal based on a lack of “satisfactory record of performance” (which purportedly precipitated the standoff at the Malheur National Wildlife Refuge with the Bundy Gang). The lawsuit says that Zinke misinterpreted the effect of the presidential pardon of the Hammonds for setting a series of fires on federal lands without authorization and interfering with firefighters, and that there are no legal grounds for renewing the permit without a public environmental review.

 

White River logging project (new case)

Twenty-one residents of the Upper Fryingpan Valley are asking the Colorado federal district court to stop the Upper Fryingpan Vegetation Management Project on the White River National Forest. The complaint challenges the failure to prepare an environmental impact statement to address Canada lynx habitat, increased carbon emissions (from biomass used in energy production) and impacts to tourism and recreation.

 

Trail on a conservation easement (new case)

The Sawtooth National Forest holds a conservation easement across a private ranch and has proposed a 4.4-mile trail across 1.5 miles of the easement for pedestrians, cyclists, horseback riders and snowmobilers between the resort town of Stanley and Redfish Lake. The owner of the ranch has filed a lawsuit claiming “numerous flaws and illegalities,” including failing to do a study on the environmental impacts of the trail.

 

Geothermal leases (new case)

Pit River Tribe v. Bureau of Land Management

The Pit River Tribe of northern California has filed suit to force the cancellation of a 1982 contract to explore geothermal energy on 2,560 acres of national forest lands where the Modoc, Klamath, and Shasta-Trinity National Forests meet. The Tribe alleges that Calpine Corporation failed to meet lease renewal requirements by making “diligent efforts” to produce geothermal power as required by the Geothermal Steam Act.

 

Grizzly bear recovery (Notice of Intent to Sue)

The Center for Biological Diversity has notified the U. S. Fish and Wildlife Service that it will sue them over its plans for recovery of grizzly bears. Specifically, they allege failure to prepare a new recovery plan that adequately addresses the need for recovery of the species in additional areas, which the Service recognized the need for in its 2011 status review of the species. The additional areas where recovery should be considered include “historic habitat in Colorado, New Mexico, Arizona, Utah, California, Nevada, Oregon, and southern Washington (mountain ranges in the western U.S.)” (likely primarily on national forest lands).  Federal legislation has also been introduced to eliminate hunting of grizzly bears.

 

Other recent litigation news discussed in other threads:

Flathead timber sale (new decision)

Tongass timber plans (new case)

Chainsaws in wilderness (new case)

 

When should national forest old growth be logged?

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Joyce Kilmer Memorial Forest, North Carolina

 

Old growth logging projects on national forests are almost sure to generate objections, but most likely they are in an area that was “allocated” to timber production in the forest plan.  (Otherwise timber harvest would have to be for non-timber reasons, and there aren’t many of those to log old growth.)  This thoughtful article examines the issue on the Nantahala-Pisgah National Forest as it continues to develop its forest plan revision.

Williams and other conservationists argue that this stand of older trees and others like it are exceptional and should be conserved. The Forest Service currently says they are not sufficiently exceptional to be conserved.

If a forest plan has been revised under the 2012 Planning Rule, we would know how much old growth is needed for ecological integrity, and old growth could be logged where there is “enough” old growth on a forest based on its natural range of variation (and where not prohibited by the forest plan).  But there are only two plans completed under these requirements.  Both have desired conditions based on what they determined to be the NRV (which is not an easy thing to do because of lack of reliable historical records).  The Flathead also prohibits destruction of old growth characteristics and limits removal of old trees to certain circumstances.  The Francis Marion includes this standard:

S37. Stands meeting the criteria for old growth as defined in the Region 8 old growth Guidance will be identified during project level analyses. Consider the contribution of existing old growth communities to the future network of small and medium-sized areas of old growth conditions including the full diversity of ecosystems across the landscape.

That is similar to the current Nantahala-Pisgah forest plan:

Steverson Moffat, the National Environmental Policy Act planning team leader of the Nantahala National Forest, told CPP that the current Pisgah-Nantahala national forest land and resource management plan requires that the forest designate large, medium and small patches of old growth to form a network that represents landscapes found in the Southern Appalachians that are well dispersed and interconnected.

A big problem with this approach is that this strategic and programmatic “designation” (of a “future network”) would probably occur outside of the forest planning process and maybe out of the public eye (unless the forest plan is amended each time it occurs).  And unless a “network” has been fully described, there is no way to tell whether a particular proposed project area is necessary to comply with the forest plan.  Which leads to that debate on a project-by-project basis, like we have here on the Nantahala-Pisgah.

On a 26-acre stand near Brushy Mountain slated for harvest, the Forest Service said the site meets the minimal operational definition for old growth defined in a Forest Service document known as the Region 8 Old Growth Guide. Even so, the stand won’t be protected since it “is already well-represented and protected in existing old-growth designations.”

How were those “designations” made?  When that occurred, did the public know that it would mean these other areas would be subject to future logging, and did they have an opportunity to object then?

“Only one-half of 1 percent of the forest is old growth in the Southeast,” Buzz Williams of the Chattooga Conservancy told Carolina Public Press. “That is the reason within itself to leave it alone.”

“There is not a need to create (early successional habitat) right on top of old growth.”

The Forest Service disagreed. In an official response to the objections, the Forest Service wrote that while the Forest Service “should provide and restore old growth on the landscape,” this spot and others within the project are either not old growth or unique enough to protect.

I get that old growth should be allowed to “move” across a landscape over time, but that timeframe is even slower than the one for forest planning (note: humor).  There would be little administrative risk in designating which areas would be preserved in a forest plan and which would not (subject to amendments in cases where designated areas are destroyed by natural events).  Better yet, except on national forests that have an abundance of existing old growth (where would this be?), require an ecological reason to log old trees.

This is a debate that should be settled in forest plan revisions not passed on for objections to future projects.  An attorney for the Southern Environmental Law Center agrees:

“The question of protecting old-growth forests is very much a planning-based question — in terms of the big picture of the management of the National Forest and restoring its ecological integrity,” Burnette said.

“In light of broad-based community support for protecting old growth, it’s perplexing that the (Forest Service) would want to rush out ahead of the process during a time when the question of protecting old-growth forests in the future is being considered in the revision of the forest plan.”

Ninth Circuit bails out Flathead timber project

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Beaver Creek Project Area – Forest Service, USDA

The Beaver Creek Landscape Restoration Project on the Flathead National Forest was presented here when the district court upheld the decision (Friends of the Wild Swan v. Kehr).  The Ninth Circuit affirmed the district court on May 10 on three claims that the project was inconsistent with the forest plan.  Two of the claims involved road density requirements for grizzly bears where the court found the project would “result in a net gain towards” objectives for one subunit and that roads would be properly reclaimed in another.

Here is the court’s holding on the third claim (emphasis added):

Finally, appellants argue that the Forest Service violated NFMA and NEPA by failing to demonstrate compliance with the Forest Plan’s road density standards for elk habitat in the Beaver Creek Project area. While this argument has significant force, we ultimately conclude that the Forest Service demonstrated compliance with the Forest Plan. The Forest Plan contains a standard that requires “[a]reas with `moist sites'” to be managed “with open road densities that average 1 mile or less per square mile” during the elk use period. Moist sites are defined as sites “found at the heads of drainages, bordering streams or marshy meadows, or occupying moist swales or benches.” The Forest Service admits that the Project’s Environmental Assessment (“EA”) did not expressly provide a specific determination about road density in areas near elk moist sites. Indeed, the Forest Service did not identify specific locations of elk moist sites. Ultimately, we conclude that the Project satisfies the Forest Plan based on the fact that a large portion of the Beaver Creek subunit has an open road density of less than one mile per square mile and the Forest Service’s explanation in the EA that “moist sites occur primarily . . . in roadless and wilderness areas[.]” While the Forest Service could have done a better job demonstrating its compliance with the elk habitat road density standards by mapping moist sites and showing that open road densities near those moist sites will meet the Forest Plan’s standard, we nevertheless conclude that the Forest Service did just enough to comply with the Forest Plan, NFMA, and NEPA.

The lesson here is “don’t try this at home, folks.”  This particular circuit panel (1 Clinton, 1 Bush and 1 Obama via Sarah Palin, if you wondered) went out of its way to construct a rationale for compliance which basically said there was a low probability of noncompliance, or the amount of noncompliance would be small.  NFMA  does not say that projects must be “probably or mostly consistent” with the forest plan.  If the forest plan says certain kinds of areas must meet certain requirements (and the Forest Service wants a successful project), the project documentation must do what the Ninth Circuit said here:  identify where those areas are and show how those requirements will be met in those locations.  (And imagine doing that if you don’t know where the locations are.)

A big timber project gets a big lawsuit

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(Clear-cutting in the Tongass Forest, Alaska | by musicwood)

 

Over the years, the Forest Service has dreamed of being able to do “big gulp” projects, or in contemporary terms, “landscape scale” projects. These essentially amount to doing one EIS for a large area and a long time period before the actual locations and treatments have been determined. There are many of these in progress now across the country, and the approach is being tested (again) in court in Alaska on the Tongass National Forest. This Earthjustice news release includes a link to the complaint (filed May 7), which includes the following:

The Prince of Wales Landscape Level Analysis Project (the Project) in the Tongass National Forest includes extensive old-growth and second-growth logging. The project area is roughly 2.3 million acres. The project area contains about 1.8 million acres of national forest land. The Project authorizes logging of up to 656 million board feet (mmbf) of timber. The U.S. Forest Service (Forest Service) estimates that this logging would occur on over 42,000 acres. The Forest Service estimates about 164 miles of roads associated with the logging would be constructed as part of the Project. The Record of Decision authorizes implementation of the Project to take place over a span of fifteen years.

The Forest Service has authorized this Project using an approach that has been soundly rejected by the courts. The agency authorized the Project before identifying specific locations for logging or road construction. As a result, the FEIS does not adequately describe the direct, indirect, or cumulative impacts of the Project on the human environment or on subsistence uses.

In the 1980’s, the Forest Service lost at least two court decisions for failure to provide adequate site-specific information and analysis in the environmental impact statements (EISs) for Tongass timber sales. City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985); City of Tenakee Springs v. Courtright, No. J86-024-CIV, 1987 WL 90272 (D. Alaska June 26, 1987). In subsequent Tongass timber sale EISs, the Forest Service began including comprehensive, detailed quantitative and qualitative descriptions of the logging and road access plans for each harvest unit proposed for sale. When it did so, the courts upheld the adequacy of the site-specific information. Stein v. Barton, 740 F. Supp. 743, 748-49 (D. Alaska 1990).

The FEIS’s Response to Comments states that “it is not possible to determine all of the direct, indirect, or cumulative impacts to wildlife habitat or connectivity that could result from this project before implementation.” Implementation of a particular part of the project has begun, apparently with no project-specific NEPA planned to determine those effects. Plaintiffs necessarily are challenging the entire project decision for violation of NEPA (and ANILCA) procedures.

There is a related NFMA issue that results from the Tongass forest plan imposing data requirements on projects that are hard to meet at this large scale, making the project inconsistent with the forest plan.  While this involves specific language in the Tongass plan, all forest plans explicitly or implicitly require certain analysis prior to projects.  The bigger the area, the harder that is to do.  And the trend of recent plan revision documents is to put off decisions about things like ecological integrity until project planning.  If successful, this could create an imposing analytical burden for large-scale projects like this one.

They are still going to have to do a site-specific NEPA analysis somewhere. The end result of all this may be that the Forest Service will create another level of planning and NEPA for “timber programs.” Just like the old days, except now added to the existing current plan and project level processes.