Jon Haber

Mining by the Ouachita National Recreation Trail

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I found three things interesting about this situation.  Legally, I think there is a problem if the environmental analysis for a mine fails to say anything about the proximity to or the effects on a national trail and its users.

Bo Lea, president of FoOT, told The Sentinel-Record Jan. 15 that the Ouachita National Recreation Trail is a 223.5-mile premiere hiking and biking trail, and FoOT’s concern was that project’s environmental assessment made “no mention of the Ouachita Trail except for one map that shows a 150-foot buffer between the trail and the mining area. That’s only 50 yards.”

The Forest seems to be assuming that the buffer will fully mitigate any effects, but that has to be disclosed and supported by some analysis.

Politically, this area is in the Congressional district of Bruce Westerman, who has become renowned for proposing anti-environmental riders to Forest Service legislation.  At least he is consistent:

“I’ve long supported sustainable mining in the 4th District, provided it benefits local communities and stewards natural resources well,” Westerman said Tuesday in an email. “I look forward to the results of the Quartz Mine’s environmental review, and hope to see it progress in the upcoming year.”

Lastly, this is an area that is promoted for mountain bike use by the Forest Service and organizations that appear to support both hiking and biking.  It’s an “epic” biking trail, and it doesn’t go through any wilderness areas.

Disagreement About Fuel Treatment: Exhibit A?

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Still More Agreement About Fuel Treatment: Conservation Colorado and former Secretary Zinke

Sharon said:

That’s why I’m thinking that finding some projects that entail:
1. FS clearcutting in California
2. Fuel treatments in backcountry
3. Fuel treatments taking out big fire-resilient (living?) trees

Would help us understand exactly what the issues are.

I think this project might be a good place to start:

Destructive wildfires along the California-Oregon border in recent years has the U.S. Forest Service pursuing projects to clear forests of burnt debris and trees that could feed future fires. One of those projects included selling the rights to log old-growth trees in Northern California, until a federal judge halted the timber sale on Friday.

Environmental groups asked a federal court to halt the Seaid-Horse timber sale in the Klamath National Forest. They say it would violate the Northwest Forest Plan by clear-cutting protected old-growth trees and harming Coho salmon.

Its purpose is: “Reduce safety hazards along roads & in concentrated stands, reduce fuels adjacent to private property, & to reduce the risk of future large-scale high severity fire losses of late successional habitat.”

So it’s got California, clearcutting, fuel treatment and big trees.  It’s also got wildlife issues, which is the other point of disagreement I suggested.  Maybe not back-country, but certainly not front-country – mid-country? 

It even comes with a spokesperson who is probably familiar with our questions:

Western Environmental Law Group attorney Susan Jane Brown says old-growth trees in Northern California provide a habitat for threatened species such as the northern spotted owl. They’re also the most resilient in enduring wildfires.

“We could agree that cutting small trees is a good thing to reduce fire risk, but when it comes to cutting very large, very old trees, that’s an entirely different matter,” Brown said.

 

 

Nantahala-Pisgah forest plan comments

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The third of three articles on the results of a Carolina Public Press Freedom of Information Act request for the more than 6,000 comments focuses on governmental emails.

Hmmm … maybe this is one of those articles where we should debate the author’s approach, especially his choice of who to interview (somewhat tongue-in-cheek).  Here is one thing a “retired Forest Service bureaucrat” had to say …

Mostly absent from the collaborative groups are elected officials. While elected officials represent residents, Friedman said, they are seldom effective members of stakeholders groups that strive for collaborative solutions.

“They may not share the level of passion and knowledge of individuals, experts and special interest groups that participate in stakeholders groups,” she said.

An interesting theory.  Friedman had quite a few things to say.  (Maybe she can explain why the locals insist on calling this the Pisgah-Nantahala National Forest.)

(The article includes links to a number of articles on this Forest’s plan revision process.)

Oregon logging history map

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Oregon Wild has compiled an  interactive map of logged and thinned areas on public and private lands across the state of Oregon.  If nothing else, it’s hard to look at this and accuse anyone wanting to keep logging out of new parts of their public lands of being an “extremist.”

Oregon Wild intends to use this mapping tool to help advocate for forest conservation and demonstrate that while there have been temporal pulses of increased logging intensity over the years, logging is always very active on both public and private forests in Oregon. In fact, if anything, the analysis on this site underrepresents the true extent of logging taking place.

The tool is also a great visualization of the few Wilderness and roadless wild lands remaining in the state – while it does not highlight these areas, they are clearly visible by their noticeable lack of logging units. These last bastions of wild landscapes are far too rare in Oregon, a reason Oregon Wild is working to protect what is left.

We can also use the tool to push back on misinformation spouted by timber interests.

  • Many say that logging on public land was “shut-down” by the spotted owl and Northwest Forest Plan, first implemented in 1994, but the data shows that logging continued apace throughout the Northwest Forest Plan region after the plan was adopted.
  • Logging advocates also say we need the increase the “pace and scale” of logging to reduce fire hazard in the dry forests of eastern and southwest Oregon, but the data show that thinning has already occurred across vast portions of these forests.

Another gas pipeline down the tubes?

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Since the NFS litigation reporter is apparently furloughed, here is something you might not want to miss …

In July the 4th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline (reported here and discussed here).   On December 13, the same court ruled against the George Washington and Monongahela National Forests for improperly amending their plans to create exceptions to 13 forest plan standards to allow the construction of the Atlantic Coast Pipeline.  Cowpasture River Preservation Association v. Forest Service again involved interpreting a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments. It also again involved circumstances where the Forest Service reversed itself regarding its concerns about the effects of a pipeline without justification.

Forest plan amendments to existing plans (that were not prepared pursuant to the 2012 Planning Rule) are subject to the substantive requirements of the 2012 Planning Rule when those requirements are directly related to the amendment. This may occur when the requirements are related to either the purpose or effects of the amendment(in a “substantial” way). The Forest Service found that relevant effects on soil, water, riparian, threatened and endangered species, and recreational and visual resources were mitigated, but ignored the purpose of the amendment, which was (as stated in the NEPA documents) to reduce the protection of those resources so the Pipeline could proceed. As stated by the court, “To say that a 2012 Planning Rule requirement protecting water resources (as one example) is not “directly related” to a Forest Plan amendment specifically relaxing protection for water resources is nonsense.”

The court rejected the argument that it is the purpose of the project that should be considered rather than the purpose of the amendment, and rejected the idea that these requirements do not apply to amendments limited to an individual project. It found, “If the Forest Service could circumvent the requirements of the 2012 Planning Rule simply by passing project-specific amendments on an ad hoc basis, both the substantive requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency requirement would be meaningless.” The court also suggested that there would be “substantial” adverse effects of this project that should lead to a conclusion that the amendments are “directly related,” and the 2012 Planning Rule requirements would apply. The court held: “The lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule — its own regulation intended to protect national forests — in order to accommodate the ACP project through national forest land on Atlantic’s timeline are striking, and inexplicable.”

The court also found a violation of forest plan goals, “because it failed to demonstrate that the ACP project’s needs could not be reasonably met on non-national forest lands.”   The FEIS did not address this question, but instead found that no national forest avoidance alternative “confers a significant environmental advantage over the proposed route.”   The court held that consistency with plan goals is required by the 2012 Planning Rule (even though the goals were not written when that Rule was in effect). The Forest had included the goals (which are also found in the Forest Service Manual) in its scoping material for the Pipeline project. The court held that the Forest Service “is not free to disregard the goal entirely — as the Forest Service apparently wishes to do here.”

The court also found violations of NEPA. The EIS was prepared by the Federal Energy Regulatory Commission (FERC), but the Forest Service had duty to independently review it. The Forest Service never explained why it was satisfied with the lack of off-forest alternative routes after it had said they were required. The Forest Service also failed to explain why it lost interest in landslide risks, erosion control and aquatic species that it had previously expressed concerns about. The court found, “the record before us readily leads to the conclusion that the Forest Service’s approval of the project “was a preordained decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this outcome.”

The court remanded the Forest Service decisions to grant the right of way to address these legal shortcomings. However, the court also found a potentially bigger problem: the Forest Service does not have the authority to grant a right of way across the Appalachian National Scenic Trail (necessary for the routes considered) because it is administered by the National Park Service, and the Park Service does not have authority to grant such a right of way at all. Thus this part of the Trump Administration’s “energy dominance” program could now be in the hands of a divided Congress.

Here is the line from the court that got the most media attention (includes a link to the opinion):

“We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

Trump issues orders to the Forest Service

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In case you missed it, on December 21, President Trump issued an executive order: “EO on Promoting Active Management of America’s Forests, Rangelands, and other Federal Lands to Improve Conditions and Reduce Wildfire Risk.”  This should answer all of our questions about what the agency’s priorities are for the duration of his administration.  It’s a short read, but here’s my take.

The problem: ” For decades, dense trees and undergrowth have amassed in these lands, fueling catastrophic wildfires.”   (No mention of climate change of course.)

The cause:  “Active management of vegetation is needed to treat these dangerous conditions on Federal lands but is often delayed due to challenges associated with regulatory analysis and current consultation requirements. In addition, land designations and policies can reduce emergency responder access to Federal land and restrict management practices that can promote wildfire-resistant landscapes.”  (In other words, the laws and the public.)

The solution:  “Post-fire assessments show that reducing vegetation through hazardous fuel management and strategic forest health treatments is effective in reducing wildfire severity and loss.” “To protect communities and watersheds, to better prevent catastrophic wildfires, and to improve the health of America’s forests, rangelands, and other Federal lands, the Secretaries shall each develop goals and implementation plans for wildfire prevention activities and programs in their respective departments.”  This includes, “Reducing vegetation giving rise to wildfire conditions through forest health treatments by increasing health treatments as part of USDA’s offering for sale at least 3.8 billion board feet of timber from USDA FS lands…,” and, “the Secretaries shall identify salvage and log recovery options from lands damaged by fire during the 2017 and 2018 fire seasons, insects, or disease.”  (I’m looking forward to a definition of “health treatments” so that we can tell if they are increasing that share of the volume targets.)

The EO “promotes” this solution by calling for the kind of coordination, streamlining and speeding up the legally required processes that has been ongoing in the agency, and for a new “wildfire strategy” by the end of the Trump Administration.  For the most part it sounds to me like the traditional charge of “cut corners to get the cut out” “consistent with applicable law and subject to the availability of appropriations.” That last part usually doesn’t seem to get the same priority, which typically leads to more litigation.  Interesting that there is no mention of the wildland urban interface (which is where pretty much everyone agrees should be the priority).

Producing the wildfire strategy does include a requirement to “Review land designations and policies that may limit active forest management and increase the risk of catastrophic wildfires…”  That seems to implicate forest plans, but it doesn’t suggest changing them, and if there are such limits they are probably there for a good, publicly supported reason.

Oh, and no mention of science.

Supreme Court may reinterpret tribal treaty rights on national forests

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Here’s a pending Supreme Court case, Herrera v. Wyoming, that hasn’t shown up in the Forest Service litigation summaries.  The federal government is defending the right of a Native American to hunt on the Bighorn National Forest without complying with state hunting laws.  If they lose, tribal treaty rights, as currently understood, could be severely diminished.  The hearing is scheduled for January 8.

When the native tribes ceded their lands to the federal government, the language in the treaties typically preserved their rights to various uses and activities on indigenous lands that were not included within the new reservation, for which the treaties used the terms “open and unclaimed” or “unoccupied” lands.  Much of that land is now part of national forests.  Here is how the Forest Service interprets the language referring to those lands:

The term applied to public domain lands held by the United States that had not been fenced or claimed through a land settlement act. Today, “open and unclaimed lands” applies to lands remaining in the public domain (for the purposes of hunting, gathering foods, and grazing livestock or trapping). The courts have ruled that National Forest System lands reserved from the public domain are open, unclaimed, or unoccupied land, and as such the term applies to
reserved treaty rights on National Forest System land.

In the case currently pending before the Supreme Court the State of Wyoming has argued that this is not true (they also argue that the lands became “occupied” when Wyoming became a state):

The parties further dispute whether the Bighorn National Forest should be considered “unoccupied lands” for treaty purposes. Herrera and the federal government emphasize that the proclamation of a national forest meant the land could no longer be settled, which they argue was the historical standard for occupation. Yet Wyoming argues that physical presence should not be the test, especially given the West’s expansiveness. According to Wyoming, the federal government’s proprietary power over its own lands, including its decisions to exclude hunters, demonstrates that the land was effectively occupied when it became a national forest.

Courts have held that the federal government has a substantive duty to protect ‘to the fullest extent possible’ the tribal treaty rights, and the resources on which those rights depend.   If Wyoming were to win their argument, treaty rights to accustomed tribal uses of national forests would no longer exist.  Because the federal government is defending the tribal interests in this case, one might think that the Forest Service would continue to protect these rights even without the treaty obligation.  However, in the past they have disagreed with tribes on issues such as campground fees and desired salmon populations.

BLM land management plans maybe prevent species listing

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At least that is what I think happened, but because of the government shutdown, I can’t confirm the details.

The Trump Administration has declined to extend federal protections for two plants native to the Mountain West.

Julie Reeves, plant and wildlife biologist with the service, said the plants didn’t make the cut because another federal agency, the Bureau of Land Management, prohibits energy development and other potentially damaging activities near their habitats.

“Those (threats) are not going to rise to the level of high magnitude that could affect the species because of protections put in place by the BLM,” she said.

A good idea for Forest Service plans regardless.

Montana County rains on land deal

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It is a time-tested and popular model.  A private landowner is willing to sell land or conservation easements to the government.  A third party conservation group steps in to provide bridge funding and/or ownership until the government can fund the purchase.  In this case, involving the Rocky Mountain Elk Foundation as the intermediary:

“The project, which was in its very early stages, would provide some valuable new access points in the area as well as protection from development along a stretch of Sheep Creek, a tributary of the Smith River, he said. In addition to the 4,000 acres purchased and then resold to the Forest Service, the checkerboard pattern of land ownership would mean access to an additional 7,000 acres of public land.”

While Meagher County (pronounced “mar”) doesn’t have any authority to influence the deal, it is attempting to do so by issuing a resolution opposing it, citing “potential loss of tax revenue, issues with federal land ownership and management, and the question of whether a land swap could open access without expanding federal land ownership.”  The resolution says, “that the commission respects private property rights and supports tourism but continues to oppose expanded federal ownership.”  (Funny that they don’t mention elk hunting/hunters, which has to be a key benefit.)  Their opposition may affect how the project competes for funding, and whether RMEF wants to stay involved.

The Forest Service, to its credit, is looking out for the “greatest good” and not bowing to nimbyism or political ideology.

“We acknowledge Meagher County’s resolution and recognize their position regarding the Holmstrom Sheep Creek proposal,” said Lisa Stoeffler, acting forest supervisor. “We appreciate that our working relationship with the commission allows for open discussions, especially related to increased recreational public lands access and the improvement of crucial fish and wildlife habitat conservation areas within the county. The Forest plans to submit two project requests for LWCF funding, one of which will include Holmstrom Sheep Creek. In our request packet, we will fully disclose the Commission’s resolution regarding the project.”

These have normally been seen as “white hat” projects in the past, but under this Administration, the Forest Service may find out that white is the new black.

Trapping lawsuits

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Neither of these is going to show up in the NFS litigation summaries because the Forest Service is not a party to the litigation (yet), but the trapping at issue occurs on national forest lands, and the Forest Service does have the authority to regulate trapping that occurs on national forest lands.

Two environmental groups have sued the Oregon Department of Fish and Wildlife for failing to ban the trapping of Humboldt martens in Oregon’s coastal forests.  Humboldt martens were proposed for listing as a threatened species in October.  Threats include “loss of habitat, wildfire, changing climate, trapping, vehicle mortality, vegetation management, exposure to toxicants, threats from predators and effects associated with small and isolated populations.”  According to the Center for Biological Diversity news release, “Following the largest mammal survey ever conducted in the state, researchers from Oregon State University and the U.S. Forest Service recommended eliminating trapping of coastal martens as a first step in rebuilding the state’s imperiled populations.”  Good for the Forest Service.  Their involvement may have something to do with the fact that their “vegetation management” could be curtailed if the species is listed.  Perhaps they will intervene in the lawsuit on the side of CBD et al?  Probably as likely as them invoking their own authority to regulate trapping as a use of national forest lands.  But that may be better than being added as a defendant.

The Environmental Protection Information Center has filed a notice of intent to sue the federal USDA Wildlife Services.  According to this article, they allege that the agency’s program for killing beavers harms endangered fish because beavers “benefit salmon and steelhead by building better habitat conditions, including creation of ponds used by salmon and increasing stream flow in summer months.”  They are asserting that the Wildlife Services must consult on the effects of this program with the National Marine Fisheries Service.  While the Forest Service is not mentioned, nor is the geographic scope, this certainly includes practices on national forest lands.  The Forest Service has a Memorandum of Understanding with Wildlife Services, addressing among other things “managing damage caused by indigenous, non-native and feral vertebrates on NFS lands,” in which the Forest Service is designated as the lead agency for NEPA compliance.  While the MOU acknowledges the need to comply with the Endangered Species Act, this responsibility is not designated.  It appears that the Forest Service at least shares any obligation to consult with Wildlife Services and could be named as a party.