The Smokey Wire : National Forest News and Views
Community Sourced, Shared and Supported
This just seemed noteworthy. Maybe it could be replicated for other species …
Kirtland’s warbler tours will be offered daily from May 15 through May 31, 7 days a week at the Mio Ranger District of the Huron National Forest. The Kirtland’s warbler tour costs $10 per adult and is free for children. Funds from the tours help cover costs associated with the tours.
In a discussion of “privatization,” Brian Hawthorne suggested here that, “It might be worthwhile discussing our perceived distinctions between what Utah’s HB 148 contemplates vs the “small tract sales” made pursuant to the SNPLMA.” That would require some knowledge of what both of these things are.
This summary of Utah’s H.B. 148 is from a review by an attorney from the conservative Federalist Society.
Recent legislation passed in the State of Utah has demanded that the federal government extinguish title to certain public lands that the federal government currently holds. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State.
On March 23, 2012, Governor Gary Herbert of the State of Utah signed into Utah law the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to House Bill 148 (“H.B. 148”). This legislation demands that the federal government “extinguish” its title to an estimated more than 20 million (or by some reports even more than 30 million ) acres of federal public lands in the State of Utah by December 31, 2014. It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer.
This is from the Southern Utah Wilderness Association, described by another poster here as “unwilling … to compromise with any other interest group.”
HB 148 requires, among other things, the federal government to transfer title of federal public lands in Utah to the state before January 1, 2015. These public lands include lands managed by the Bureau of Land Management, Forest Service, U.S. Fish and Wildlife Service, and National Park Service.
- They include, among others, sensitive sites such as Grand Staircase-Escalante National Monument, Glen Canyon National Recreation Area, and all national wildlife refuges in the state.
- This would also include the overwhelming majority of remarkable red rock lands surrounding Moab, the San Rafael Swell, and Grand Gulch.
- The Legislature has indicated that some of these lands would be sold outright to the highest bidder while others would be kept in state ownership but opened to oil and gas drilling, off-road vehicle use and extractive industries.
- The bill does not require the transfer of national parks, wilderness areas, or certain national monuments and national historic sites.
Here is a summary of the Southern Nevada Public Land Management Act (from this OIG Report).
Las Vegas, one of the fastest growing cities in the United States, is landlocked by federal lands. Over the past decade, the population has increased by more than 60,000 people per year. To accommodate this rapid growth and expedite the disposal of federal land, Congress enacted SNPLMA in 1998 (Public Law 105-263, 31 USC 6901). SNPLMA allows BLM to sell federal land (about 27,000 acres) primarily through public auctions, establish a special U.S. Treasury interest-bearing account, and use the resulting receipts for educational and environmental purposes and capital improvements. In addition, SNPLMA directed BLM to transfer ownership of about 5,200 acres of land in the McCarran Airport Cooperative Management Area (CMA) to Clark County to help the County enforce regulations concerning airport noise within the CMA. BLM is entitled to 85 percent of any receipts from the sale, lease, or other conveyance of CMA lands.
I’m afraid I don’t see much similarity. The justifications are at opposite ends of the scale from a localized problem to a disagreement about overall management policies. The difference in the affected area is huge. There are benefits returning to the American public from the Las Vegas land sale proceeds. Perhaps it’s a slippery slope (next Los Angeles, Salt Lake City, Missoula …?), but H.B. 148 represents the bottom of that slope.
There sometimes seems to be an undercurrent here of the idea that environmental groups are rich bullies, and extractive industries are working for the common good, or at least are benign. Here’s some evidence otherwise regarding the latter.
One of the industry tactics is SLAPPs, Strategic Lawsuits Against Public Participation, wherein corporations try to intimidate their opponents by filing truly frivolous lawsuits – that they can afford but the defendant can’t. Matthew posted about one involving a forest products company here.
But your friendly oil and gas industry seems to be a leader in this field. Meaning that when you pay for your heat and transportation you’re also paying for this; “Using lawsuits to shut people up has long been a part of the oil industry’s playbook…” They lost a notable case recently when they sued youth groups (among others) after the groups won protections against neighborhood oil drilling in Los Angeles.
Many states have passed legislation to prevent this kind of intimidation of free speech, and a proposal is pending in Colorado, as described here, by an anti-drilling activist who has been SLAPPed:
I accept the urgency of climate change, and I am a proud advocate for our public lands. Many here agree with me, and together we have stood up to limit oil and gas development from expanding across the national forest and BLM lands.
The particulars of my case are unimportant here, although they can be easily researched. And I have already been found by a Colorado District Court to not have committed any actionable offense, and also awarded attorney fees for the “frivolous” and “vexatious” complaint made against me.
But all that is under appeal, and so I am still, over two years later, unduly burdened by and defending myself against this action.
Free speech is protected in our republic for good reason. Citizen input is grist for the mill of representational democracy. Dialogue and debate is a plus in pluralistic society. And this value is shared by Americans across the political spectrum. Free Speech allows people to participate robustly in government, speak truth to power, and to challenge the status quo.
Second maybe to only Utah for creative ways to privatize federal lands, the State of Wyoming has come up with another scheme. This article reports on “a conversation between Gov. Mark Gordon and Secretary of the Interior David Bernhardt about how Wyoming could assume a role that’s now the purview of federal agencies.”
“The notion here would be could the state have more of a primary role in establishing the beginning steps of [the] NEPA [process],” Gordon told WyoFile in late March. “In other words, could the state organize the NEPA effort and kind of walk through it and deliver [results]” to a federal agency.
Following Gordon’s lead, the Wyoming Legislature expects to study over the next nine months “state primacy and oversight of environmental assessments and environmental impact statements …”
“The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.
The states are already given a front row seat in federal NEPA processes, and the federal government can contract for NEPA services; it is the apparently new concept of “primacy” that is going to run into legal problems. It’s not clear from the examples provided whether the issue is decision-making authority, or to get “more of this work done in a timely manner.” If it’s the latter, I’m sure the feds would be happy to have state volunteers or state dollars (but isn’t this the focus of the “Good Neighbor” program?), though increased legal scrutiny of potentially biased NEPA products should be expected. If “primacy” means “the final word” on anything in a NEPA product they should probably spend their committee time elsewhere (like Congress).
The Center for Biological Diversity has notified the U. S. Fish and Wildlife Service of its intent to sue for failure to respond to its petition to list the Siskiyou Mountains salamander as a threatened or endangered species. The species is found primarily on BLM lands, but also on the Rogue River-Siskiyou and Klamath National Forests. Prior listings were avoided largely because of provisions in the Northwest Forest Plan to protect the species:
Conservation groups first petitioned for protection of the salamander under the Endangered Species Act in 2004. To prevent the species’ listing, the Bureau of Land Management (“BLM”) and U.S. Fish and Wildlife Service signed a conservation agreement in 2007, intended to protect habitat for 110 high-priority salamander sites on federal lands in the Applegate River watershed. In 2008 the Fish and Wildlife Service denied protection for the salamander based on this conservation agreement and old-growth forest protections provided by the Northwest Forest Plan.
Here’s what’s changed (from the 2018 listing petition):
The Western Oregon Plan Revision (WOPR) which replaces the Northwest Forest Plan, has the express purpose of substantially increasing logging on BLM lands with the range of the salamander and elsewhere (USBLM 2016, p. 20). The WOPR was originally proposed in 2008 and abandoned by the BLM in 2012 after years of litigation. In August 2016 the BLM issued a final Environmental Impact Statement implementing the WOPR (USBLM 2016).
The WOPR presents a substantial new threat to Siskiyou Mountains salamanders in Oregon because it will allow increased timber harvest in late-successional areas, decrease optimal salamander habitat, increase habitat fragmentation, eliminate requirements to conduct predisturbance surveys in salamander habitat, and allow logging of previously identified known, occupied salamander sites. The WOPR removes protections for salamander populations formerly included in species protection buffers on BLM lands. Although some of the reserves on BLM lands have been enlarged in the WOPR, timber harvest emphasis areas will often be subject to more intensive logging, and logging of known, occupied Siskiyou Mountains salamander sites is allowed.
This demonstrates again the value of including regulatory mechanisms as protective measures in forest plans: they can keep species from being listed under ESA. There is already a pending lawsuit against the new WOPR (now officially called the Resource Management Plans for Western Oregon), and the Forest Service should keep this in mind when it revises its forest plans that are now governed by the Northwest Forest Plan (especially the “survey and manage” requirement).
The trend seems to be in the other direction, however (see also greater sage grouse). And when a species is listed, regulatory mechanisms are needed in forest plans to contribute to their recovery and delisting. Yet the Forest Service is removing such mechanisms from forest plans for grizzly bears, lynx and bull trout (Flathead National Forest), Indiana bats (Daniel Boone National Forest: to “provide flexibility to implement forest management activities”), and black-footed ferrets (Thunder Basin National Grassland: “greater emphasis on control and active management of prairie dog colonies to address significant concerns related to health, safety, and economic impacts on neighboring landowners”). Since plant and animal diversity was one of the main reasons for NFMA it shouldn’t be a big surprise to see these kinds of retrograde actions ending up in court.
(Update to Tohono Oodaham v. USFS and two other cases discussed here.)
A FOIA request unearthed EPA comments to the Army Corps of Engineers regarding effects of the Clean Water Act permit. And the mining company response, which is partly to demand a “statistical analysis” of impacts before calling them “significant.”
Mountain yellow-legged frogs, Sierra Nevada yellow-legged frogs, and Yosemite toads
(D. C. District Court decision in California Cattlemen’s Association v. U. S. Fish and Wildlife Service.)
Farming and ranching groups were not able to establish standing to sue under ESA by claiming that critical habitat designation led the Stanislaus National Forest to reduce permitted grazing, partly because that occurred before the critical habitat decision. The Regulatory Flexibility Act also did not apply. Additional information here.
(New lawsuit, Western Watersheds v. Bernhardt, in the District of Idaho.)
Plaintiffs who were already litigating allegedly inadequate protections for sage grouse adopted in BLM land management plans in 2015 (discussed here as Western Watersheds v. Zinke) are now suing the BLM for weakening them. The Forest Service adopted similar measures but has not yet changed them. Additional information here.
Cascade-Siskiyou National Monument
(District of Oregon court decision in Murphy Company v. Trump)
The court found that the Oregon and California Lands Act, which applied to lands included in an expansion of the national monument, did not conflict with the Antiquities Act and did not prohibit inclusion of O & C ands in the monument.
(Update on two lease cancellation cases)
The Department of Interior is withdrawing its appeal of a district court decision favoring leaseholders in one of two cases involving cancellation of oil and gas drilling leases on the Helena-Lewis and Clark National Forest adjacent to Glacier National Park and the Blackfeet Indian Reservation. Environmental and tribal intervenors are maintaining their appeal, and the second appeal by all parties remains pending.
(District of Colorado decision in Citizens for a Healthy Community v. U. S. Bureau of Land Management)
The BLM and Forest Service illegally approved two adjacent natural gas drilling plans in western Colorado, because they did not adequately analyze wildlife and climate impacts.
(New lawsuit.)
The Cascade Forest Conservancy filed a lawsuit against the Forest Service and BLM over the agencies’ decision to allow exploratory drilling near the Mount St. Helens National Volcanic Monument in the Gifford Pinchot National Forest on lands acquired using the Land and Water Conservation Fund.
Court fees and costs
The Montana District Court awarded fees based on Endangered Specie Act’s fee shifting provision to two attorneys who litigated Native Ecosystems Council v. Krueger, (see discussion of Beaverhead-Deerlodge forest plan). The award was due because plaintiffs were the “prevailing party” on a claim involving Canada lynx: “By obtaining an enforceable judgment against the Forest Service that preserved the Court’s 2012 injunction pending consultation under the ESA, Plaintiffs obtained sufficient success for an award to be appropriate for the legal work in its entirety.” (These are the attorneys who frequently represent plaintiffs against the Forest Service in Montana, and you might find the court’s discussion of the value of their services to be interesting.)
The Oregon District Court awarded costs “other than attorney’s fees” to the government and intervenors as the “prevailing parties” in accordance federal court rules in BARK v. Northrop. They were reimbursed for costs associated with preparing the records needed for the litigation. Courts can deny such costs, but this court was not convinced by these plaintiffs to do so.
(Eastern District of California court decision in Conservation Congress v. U. S. Forest Service)
The court upheld the Bagley Hazard Tree Abatement Project on the Shasta-Trinity National Forest. It involves felling and removal of hazard trees along roads in the area burned by the 2012 Bagley Fire. The court held:
The key criterion for identifying potential wilderness is an area that “generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable” (Planning Handbook Ch. 70). A new report from the Friends of the Clearwater alleges that the Forest Service is degrading the wilderness potential of existing roadless areas over time by logging them, using exceptions provided by the regulations governing management of roadless areas, such as reducing fire risk.
Since 2008, “Across Idaho, the Forest Service reported roadless logging in preliminary numbers ranging up to 18,000 acres of roadless areas.” In Montana, “The Forest Service disclosed preliminary figures, enumerating that it authorized approximately 33,000 acres of roadless logging from 2010 to 2018.”
Also according to the report:
“When the Forest Service revises forest plans, we found a pattern where the agency drops isolated acreage from its roadless inventory and wilderness-recommendation process due to evidence of timber harvest. The Forest Service Handbook directs the agency to identify a basic potential-wilderness inventory; the agency can include areas where logging has occurred if improvements are not substantially noticeable. The Forest Service will also use this criterion to update its roadless inventory. In two different forest plans, the Forest Service dropped the roadless acres where timber harvest had occurred because at the time of review, those portions of roadless areas did not meet the criteria for potential wilderness or espoused roadless characteristics.”
This article includes a link to the report, and includes an example of a project that has led to recent litigation.
Utah is attempting a more direct approach: modifying the regulations governing roadless areas for their state, including eliminating protections for some areas. While road construction is generally not allowed in roadless areas under the existing regulations, Utah would like more roads to reduce fire risk, a contention countered here.
Here’s some well-known quotes from former Forest Service Chief Dale Bosworth in 2003. He was trying to sell the idea that the agency was no longer timber-first. This was the “new” Forest Service; “caring for the land” comes first.
Twenty years ago, we focused primarily on outputs, measured in terms of board feet; today, we focus primarily on outcomes, measured in terms of healthy ecosystems.
So our mission focus has shifted away from past levels of timber production.
This concept was embedded in the 2012 Planning Rule, with desired landscape conditions being the basis for vegetation management projects. From the Preamble:
“However, land management planning today focuses on managing toward desired conditions, or outcomes, rather than focusing simply on outputs.”
Today it looks like we have the new “new” Forest Service. At least on the Olympic National Forest:
Members of the collaborative and non-voting members from the Olympic National Forest, Olympic Natural Resources Center (ONRC) and several other entities said Tuesday that the common goal is to increase timber harvest and aid the local economy while also protecting the forests.
Reta Laford, Olympic National Forest supervisor said her agency’s current emphasis within the restoration framework will treat more acres and increase volume using congressional appropriations as well as timber sales that retain the funds created to use for North Olympic Peninsula projects.
Paul Bialkowsky, timber manager for Olympic Peninsula Operations for Interfor and a collaborative member, said the group is working for a shared goal among industry, government, and environmentalists to increase timber harvest while maintaining forest and watershed quality.
The only person to say anything about ecosystems was the meeting facilitator. And there was no mention of desired conditions. It looks like the agency may be returning to its roots (or stumps). Also that potential collaborators who don’t share this new/old goal may have a reason to be not be much interested in collaborating.
Maybe this is one possible (small) advantage of state ownership (vs federal) of public lands in one state. In Montana you (and I mean you, or any environmental group) can bid on a 25-year “conservation license” in lieu of a timber sale. In what I believe may be a first in Montana, there was such a high bidder. It’s maybe a fairly unique situation, where adjacent landowners could afford to pony up the $100ks for what appears to amount to a limited-term scenic easement. This makes some sense for the state if the goal for land management is dollar returns. Of course the actual timber bidder is protesting it. Both sides have raised questions about what the statutory language for state lands means when it says: “secure the largest measure of legitimate and reasonable advantage to the state.” Should it include the “benefits” of roads that would be built (but not the environmental costs); should it include the long-term economic value of being able to resell the same timber in 25 years? (Is this a good idea for public lands?)
For those who have been missing this (click links for more) …
Update: The energy companies wanting to build the Atlantic Coast Pipeline across the George Washington and Monongahela National Forests are appealing a reversal of that decision to the U. S. Supreme Court. The 4th Circuit Court of appeals held that the Forest Service improperly amended their forest plans to allow it (discussed here).
Rock Creek Mine (no link)
New lawsuit: Ksanka Kupaqa XaʾⱠȼin v. U. S. Fish and Wildlife Service. In the latest case in long-running litigation against the Rock Creek copper and silver mine on the Kootenai National Forest, Plaintiffs challenge failure to reinitiate ESA consultation regarding the mine’s impacts on grizzly bears. Plaintiffs also challenge the legality of FWS’s 2017 bull trout biological opinion and the Forest Service’s authorization for the first phase of the project in reliance on the challenged FWS decisions.
Beaverhead-Deerlodge forest plan
Update: The Beaverhead-Deerlodge National Forest has decided not to issue any new decisions on timber or vegetation projects until it has completed consultation on the effects of its 2009 revised forest plan on Canada lynx, a species that was found on the forest after previous consultation on the revised plan occurred. This is the result of the NEC v. Krueger lawsuit on the Fleecer Mountains Project discussed here and here.
Update: The Ninth Circuit Court of Appeals has enjoined the Glacier Loon Project on the Flathead National Forest pending resolution of an appeal from a district court that upheld the Project. Plaintiffs say the U.S. Fish and Wildlife Service didn’t properly analyze the project’s potential harm to threatened grizzly bears and Canada lynx and wolverines that are proposed for listing, including cumulative effects of the adjacent Beaver Creek project (also being litigated).
New decision: The Montana Federal District Court has enjoined a logging and prescribed burning project on BLM land in the Elkhorn Mountains, which are jointly managed with the Helena-Lewis and Clark National Forest. A supplemental environmental analysis is being required to consider cumulative effects.
Elkhorn Mountains Helena-Lewis and Clark National Forest
Also in the Elkhorn Mountains (and who knows, maybe a future lawsuit), the Strawberry Butte Front Country Trail Management Project calls for adding 39 miles of hiking and biking trails to the U.S. Forest Service trail system within a uniquely designated wildlife management unit. The system would designate 28 miles of trail that currently exists but is not recognized by the Forest Service, as well as 11 miles of new trail construction. One complaint during the public comment period: “inviting bike enthusiast from all over the country to the north Elkhorns.”
New decision: The Ninth Circuit Court of Appeals has upheld a travel plan decision and environmental analysis by the Kaibab National Forest to allow hunters to drive up to a mile off certain routes to pick up big game. According to the State of Arizona the decision was needed to help cull oversized herds of bison that roam areas of the forest near Grand Canyon National Park. Plaintiffs cited potential danger to the habitat of Mexican spotted owls and the black-footed ferret, both endangered species.
New decision: The Colorado U.S. District Court upheld the Aspen-Sopris Ranger District’s right to charge $10 per vehicle to visit the Maroon Bells Scenic Area. The judge ruled that it didn’t matter if a person doesn’t use the services offered. The plaintiff’s attorney filed a notice of appeal in the 10th Circuit Court; the Recreation Enhancement Act forbids the Forest Service from charging a fee “solely for parking” or for general access to public lands, she said in an email.
Update: Rio Grande National Forest Supervisor Dan Dallas on Wednesday announced a new decision to provide reasonable access to a 288-acre private property parcel adjacent to Wolf Creek Ski Area. The property owner plans to construct a year-round resort known as the Village at Wolf Creek. Previous litigation was discussed here. Coincidentally, a U.S. magistrate judge has ordered the Forest Service to release documents asked for in the FOIA request that sought information about political intervention in the Wolf Creek decision. The law required the release of the documents by last August.
Update: In another FOIA case, the Forest Service was able to withhold records pertaining to Nestle’s special use permit and water diversion and transmission facilities at Strawberry Creek in the San Bernardino National Forest pursuant to the “trade secrets” exemption.
Update: Four environmental groups have intervened on the side of the Forest Service to defend its decision in the Humboldt-Toiyabe National Forest Plan to protect the listed population of bi-state sage-grouse from motorized users. “The Forest Service did the right thing by strengthening sage-grouse protections under the Humboldt-Toiyabe plan,” said Taylor Jones, endangered species advocate for WildEarth Guardians.
Future litigation: As for the greater sage-grouse, which was not listed under ESA because the Forest Service and BLM amended their land use plans to include a species conservation strategy, the BLM has changed their plans again to remove key protective measures that would have avoided development in the areas most important to sage-grouse. The Forest Service is likely to follow (although their website is still touting the benefits of their existing conservation measures).
Humboldt-Toiyabe oil and gas leases
No action alternative selected: Also on the Humboldt-Toiyabe National Forest, the Forest Service probably avoided another lawsuit by deciding to not allow oil and gas leases on almost 53,000 acres of the Ruby Mountains in Nevada. The Forest Supervisor said his decision was based on overwhelming opposition to the idea and “unfavorable geologic conditions” that suggest there is little to no oil and gas potential in the area. On that latter point, maybe he could have figured it out a little earlier and avoided a little work? And now they have to allow an objection?
Blue Mountains forest plan revisions
No action alternative selected: The Forest Service has decided to not revise the forest plans for the Blue Mountains of eastern Oregon and Washington, apparently in response to local complaints that they could not accept any of the action alternatives because of the social and economic impacts. (This was prophesied here.) “For now, the forests will be managed under a previous plan, with a few minor changes.” There is no mention of an objection process for this decision (including the “minor changes”).
Monongahela hydroelectric project
No action proposed: Unlike their decision on the Atlantic Coast Pipeline, the Monongahela National Forest successfully used its forest plan to block a proposal to build a water-powered electrical facility. The Forest Supervisor wrote that the project would adversely affect parts of the Forest, including species and vegetation. “In addition to denying the SUP proposal because the proposed licensing studies are inconsistent with the Forest Plan, the project itself would be antithetical to the Forest Plan,” he wrote. This rejection is not subject to administrative appeal. As with the Pipeline, the politicians are now being asked to help.
Forest Service prosecutions: