Not much has been said about it so there must be not much to say, but here’s something. All the House-introduced demons seem to have been vanquished (again). But it looks like Trump is going to add a little Wilderness in Tennessee!
Jon Haber
Forest plan promotes “budget-busting suppression spending”
This article discusses a report from FUSEE (Firefighters United for Safety, Ethics, and Ecology – dutifully described as funded by environmental organizations) on the 2016 Soberanes Fire on the California coast:
In the first week, the blaze destroyed 57 homes and killed a bulldozer operator, then moved into remote wilderness in the Los Padres National Forest. Yet for nearly three more months the attack barely let up.
The Soberanes Fire burned its way into the record books, costing $262 million as the most expensive wildland firefight in U.S. history in what a new report calls an “extreme example of excessive, unaccountable, budget-busting suppression spending.”
The report suggests the Forest Service response was the result of a “use it or lose it” attitude to spend its entire budget, which had been boosted by $700 million because of a destructive 2015 fire season. The agency managed to spend nearly all its 2016 money in a less-active fire season on about half the amount of land that burned the year before.
“They just kept going crazy on it,” report author Timothy Ingalsbee said. “It wasn’t demand-driven. It was supply-driven. They had all this extra money Congress had given them, and they had to justify that.”
An internal Forest Service review produced last year and obtained by the AP reached some of the same conclusions as Ingalsbee.
The review found forest managers didn’t think they could deviate from the “overwhelming force concept” aimed at suppression. It also said the agency’s protocol for managing long-term wildfires “does not sufficiently evaluate and adjust to changing risk.”
One challenge fire commanders faced was an outdated forest management plan for Los Padres that called for full suppression of all wildfires, Ingalsbee said.
Mike Warren, a retired National Park Service firefighter who reviewed the report, questioned the wisdom of suppressing fires in remote wilderness where flames can help eliminate brush and other flammable vegetation that could fuel a later wildfire.
Of course that highlighted part made me curious about what this 2005 forest plan said. I assume that interpretation is based on a table of “suitable uses” (Table 2.3.4) that shows that none of the six management areas are suitable for “Wildland Fire Use Strategy.” I can see how that would lead to an approach of burning money.
I also took a quick look at the proposed final revised plan for the Inyo National Forest, to see what might be different. There are four fire management zones (p. 75) (Inyo zones).
Wildfire responses include a spectrum of strategies that include full suppression, confine/contain, monitoring, and management to meet resource objectives. The entire spectrum of strategies is available in all the zones and wildland fires will be actively managed in all the zones to meet objectives.
That includes the “Community Wildfire Protection Zone,” where (p. 76):
Wildfire is suppressed under most weather and fuel conditions due to the very significant risk of potential economic loss and public safety concerns posed by a wildfire occurring within this zone.
The article also acknowledges the “pressure from politicians, homeowners, businesses, loggers and ranchers to control the fire. I suppose that kind of pressure was part of why this forest plan says what it does, and other places have different issues, but the forest planning process is a good place to talk about what the tradeoffs are.
Wayne National Park
I just did this for their headline/picture, but here’s the article about the wilderness planning part of their forest plan revision process.
When the government wants to take something away
These two stories about national forest management demonstrate how hard it is to change or eliminate existing uses, but the Forest Service is trying. In both cases, there is outside pressure to do so. In one, a lawsuit was required to force the Sierra Nevada national forests to complete travel management planning for over-snow vehicles that was required in 1972. In the other, the Malheur National Forest is trying to implement changes in grazing required by the listing of salmon and bull trout under ESA, subsequent forest plan direction, and current oversight by the regulatory agencies. The ranchers and snowmobile users are of course not happy. (But some non-motorized winter users are.)
Black Hills ghost trails come alive
Two existing but unauthorized recreational trails will be considered for inclusion in the Black Hills National Forest’s official non-motorized trail system. But the trails were apparently blazed by users rather than Forest Service officials, and neither trail is considered part of the forest’s official trail system.
Just two years ago, the then-ranger of the Forest’s Mystic District, Ruth Esperance, threatened to criminally prosecute builders of unauthorized trails. The threat provoked a backlash among trail users, especially in the mountain-biking community, who accused forest officials of longstanding inaction on proposals for new trails.
In other words, they got tired of waiting and just decided to do it themselves, and the Forest Service is about to sanction that. Meanwhile, four other proposed trails were set aside for now by Forest Service officials, who considered a total of six proposed trails as part of a new trail-proposal process that was created in August. They were not approved because of unacceptable impacts.
Van Every identified numerous problems with the Storm Mountain and Victoria Lake trails. “Issues include routes through documented cultural sites, crossing private property, permitting bicycles on the historic Flume Trail where they are currently not authorized, crossing a major highway, fence crossings in the Foster Gulch area, lack of parking, and potential conflict with big game winter range,” Van Every wrote… Furthermore, Van Every wrote, the Paha Sapa trail goes through the Norbeck Wildlife Preserve, where trail miles are limited by the Black Hills National Forest’s management plan.
For the two trails that were advanced for further review, several more steps in the process remain, including environmental reviews in accordance with the National Environmental Policy Act.
Well, this kind of points out the problem with this approach – these trails are already there and impacts have already occurred. The reason the Forest Service doesn’t “just do it” is because there are resources they are charged with protecting that they are required by law to consider BEFORE they decide to do it. But here is a great way to shortcut the process, and ignore legal requirements; just look the other way. The users could have funded the environmental analysis needed to proceed, but instead extra-legal “self-help” is apparently being rewarded.
Maybe this new process of “build it, then ask for it” will become the model for other places where the Forest Service doesn’t act fast enough on trails or other developments (or maybe even where they’ve already said “no”). Maybe national forest neighbors (or their governments) will start using this approach to cut down trees on public lands that they consider a fire risk, or maybe they’ll burn them. (This actually reminds me of the “shovel brigade” that rebuilt a Forest Service road in Nevada after a flood, which damaged bull trout habitat, but there the Forest Service at least resisted it.)
NFS Litigation Weekly November 30, 2018
Forest Service summaries: Litigation Weekly Nov 30
The district court upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest with respect to Healthy Forest Restoration Act compliance. (D. Mont.)
- Greenpeace v. Stewart
The Ninth Circuit Court of Appeals reversed the district court and the Forest Service on four timber sales on the Tongass National Forest because of flawed analysis of deer habitat. (9th Cir.)
- Quiet title claims
(New cases – no links.) Five plaintiffs in different cases seek to quiet title regarding rights to irrigation diversion structures on the Sawtooth National Forest. (D. Idaho)
BLOGGER’S BONUS
(There was no link provided by the Forest Service above, but the article I linked includes a link to the court decision.) This is a case that has been litigated for “over a decade.” The 9th Circuit stated, “USFS has been given multiple opportunities to correct flaws in its project analysis and has ignored this court’s guidance.” I wanted to emphasize the holding on species viability (these are rare deer). The deer model was flawed because it “was too unreliable to be used in conjunction with the proxy on proxy approach of ensuring species viability.” The court cited the precedent of Lands Council v. Powell from 2005: “Crucial to [the proxy on proxy] approach . . . is that the methodology for identifying the habitat proxy be sound.” Since the coarse filter approach sanctioned by the 2012 Planning Rule uses habitat as a proxy for species viability, this will place a premium on demonstrating that coarse filter vegetation plan components will provide the ecological conditions needed for at-risk species. Typical forest plan revision documentation does not seem to take this requirement to demonstrate the soundness of their methodologies very seriously (despite the requirement in 36 CFR §219.9(b)(1) to make this determination).
This is the final step in resolving a case that was begun in 2009 and led to injunctions against several timber sales on the Kootenai National Forest. The Montana district court held that the Forest had complied with the requirements of the injunction for the Miller West Fisher Project, and it was therefore dissolved. Plaintiffs conceded all points except one involving the Endangered Species Act – the need to analyze incidental take for grizzly bears that may be harmed outside of their recovery zone. The Forest relied on the analysis of incidental take done for a grizzly bear access amendment that is now included in its revised forest plan. The court upheld a “tiered” consultation process, where analysis at the forest plan level is sufficient for projects unless “proposed actions would result in adverse effects to grizzly bears that were not fully analyzed in the first-tier biological opinion (emphasis by the court). In its concurrence that the project is not likely to adversely affect grizzly bears, the Fish and Wildlife Service determined that, “the proposed action is not likely to adversely affect the threatened grizzly bear in ways other than described in the2011 consultation on the Access Amendment”(emphasis by the court), and that analysis did not need to be repeated. (D. Mont.)
Collaborative flops
The Colville National Forest released a draft Record of Decision for its revised forest plan on September 8. During the planning process, a collaborative group, the Northeast Washington Forestry Coalition submitted a proposal to designate more than 200,000 acres of new wilderness, to be offset by increased logging on other parts of the Forest and building new trails for mountain bikers, motorcyclists and ATV riders, who would lose access to some trails if Congress approved new wilderness. The revised plan proposed by the Forest includes only 60,000 acres of wilderness recommendations.
I guess that’s good news if you think that local collaboratives have too much influence on national forest decisions and/or if you are a proponent of logging. But wait! It turns out that the most influence was wielded by the local governments, and the local timber company isn’t happy about that.
Russ Vaagen, vice president of Vaagen Brothers Lumber Co. and NEWFC board president, formally objected to the draft plan in a Nov. 6 letter. In the letter, he said the Forest Service’s decision was “skewed” by special interest groups. “The Colville National Forest belongs to all citizens of Washington and the United States,” he wrote. “Ferry, Stevens and Pend Oreille county commissioners represent just a tiny fraction of these citizens.” Later in the letter he said it’s unavoidable that locals will have “personal, financial interests” in what happens to federal land, but that those interests should “have no bearing on federal land management issues.”
This sort of left my head spinning. Maybe it’s because they didn’t get the increased logging either (I don’t know if that’s true)? Or maybe it’s that the “collaborative” part should win out over merely “local.” Or did the “local” actually use an end-run to obtain a top-down approach from an administration hostile to new wilderness?
I’ll go out on a limb here and suggest that since decisions to designate wilderness are inherently and legally political, this may legitimize and enhance the value of a local collaborative approach. Of course all is not lost on the Colville; the collaborative approach could count for something when the collaborative makes an end-run around the Forest Service to obtain wilderness legislation, since it can undercut an agency position that the Forest Service is doing what the public wants.
In another wilderness squabble involving an end-run by local governments to reduce wilderness protection, three counties in Wyoming have chosen to bypass a statewide collaborative process and support federal legislation that would eliminate wilderness study areas without designating any new wilderness.
Titled the “Restoring Public Input and Access to Public Lands Act of 2018,” HR 6939 would remove wilderness study designation and associated protections from approximately 400,000 federal acres in Lincoln, Big Horn and Sweetwater counties (see the bill below). The three counties declined to participate in a years-long consensus-based investigation of the wildlands. Saying the wilderness-study designation “prevents access, locks up land and resources, restricts grazing rights, and hinders good rangeland and resource management,” Cheney introduced her measure Sept. 27. It marked the third time she bypassed the Wyoming Public Lands Initiative sponsored by the Wyoming County Commissioners Association. Across the state, 777,766 acres of BLM and Forest Service property are protected by wilderness study designation. WPLI sought a single statewide wilderness bill to resolve study-area status. A majority of commissioners in the three counties, however, responded to Cheney’s early 2018 call for legislation before the WPLI process played out.
I’m cheering for the collaboratives here, too.
NFS Litigation Weekly November 16, 2018
Forest Service summaries: Litigation Weekly Nov 16
(New case.) Environmental groups challenge the Rico-West Delores Roads and Trails Management Project on the San Juan National Forest regarding effects on elk. (D. Colo.) (A lawsuit by motorized users was filed earlier and described here.)
(New case.) Environmental groups challenge the Kilgore gold mining exploration project, allowing ten miles of new roads and 140 drill stations, and its environmental assessment on the Caribou-Targhee National Forest. (D. Id.)
Blogger’s Bonus
The plaintiff is a grazing permittee seeking to enjoin the Forest Service from enforcing certain livestock grazing management standards against Plaintiffs’ grazing operations on a grazing allotment within the Beaverhead-Deerlodge National Forest. The court looked only at the question of irreparable harm that would occur to Plaintiffs prior to resolving the case, found none and denied the injunction.
This was introduced as a new case here. Regarding my comment about granting Plaintiffs’ relief, the Forest did reinstate grazing privileges, but the parties still disagree about the appropriate annual use levels incorporated into existing permits.
The Cove Fire Salvage and Restoration Project would remove fire-damaged trees on the Modoc National Forest, which is proceeding under an “Emergency Situation Determination.” On October 30 the court denied a preliminary injunction motion involving compliance with the Sierra Nevada Forest Plan Amendment requirements for northern goshawks and riparian areas. It held that the project was consistent with guidelines that permit salvage harvest after “stand replacing” events, and that require surveys as part of project planning, and it held that guidelines do not require remapping of goshawk habitat in the project area. The court found the Plaintiff has “some likelihood of success” regarding effects on the Modoc sucker, a recently delisted fish species, and regarding the “hard look” required by NEPA.
However, the court was not impressed with Plaintiff’s arguments that it would be irreparably harmed by the project. It distinguished the many precedent cases that had established a fairly low bar associated with environmental harm, including implying that such harm is only associated with “the logging of healthy mature trees.” In balancing the equities and the public interest, the court placed significance on “hazardous roadside trees that pose a risk of falling within the next five years,” and the “interest in mitigating the intensity and severity of future fires, increasing ecosystem resilience.”
NFS Litigation Weekly November 9, 2018
Forest Service summaries: Litigation Weekly Nov 9
The Forest Service successfully prosecuted a trespass action against miners on the Beaverhead-Deerlodge National Forest who were conducting mining activities on an unpatented mining claim without an approved plan of operations. (D. Mont.)
(Update.) The Supreme Court denied a request to stay proceedings in the “youth climate change” case pending in the Oregon federal district court (removing an earlier temporary stay).
NFS Litigation Weekly October 26, 2018
Forest Service summaries: Litigation Weekly Oct 26
A preliminary injunction was denied for the Quartz Integrated Project on the Umpqua National Forest because the Forest adequately addressed new information about red tree voles. (D. Or.)
The Supreme Court stayed further proceedings in the “kids’ climate change” case.
- ALDF v Christiansen (N.D. Cal.)
- Friends of Animals v McAdams (D. D.C.)
(New cases.) Both cases challenge the decision to sell wild horses from the Modoc National Forest without complying with or formally changing a policy that prohibits commercial slaughter of the horses.
(New case.) Plaintiffs claim that authorization of activities that contribute to climate change violate the U. S. Constitution. (D. Or.)
(New case.) This case involves that Seiad-Horse Risk Reduction Project on the Klamath National Forest involving hazard tree removal and post-fire salvage logging and compliance with the forest plan and NEPA. (E.D. Cal.)
Blogger’s notes:
The Cascadia case was discussed here when it was filed. The case involves the application of “survey and manage” requirements in the Northwest Forest Plan to red tree voles. Red tree vole nesting sites are protected from logging unless the land manager determines the site is “non-high priority” (“NHP”). Plaintiffs objected to the NHP designations for the project area. Additional surveys occurred after the objection process and the Forest subsequently released “amendments to the EA” to “designate” additional NHP sites. There was no public opportunity to review or object to these sites.
I am not that familiar with the workings with the Northwest Forest Plan, but I see some problems here. “Designation” of sites for long-term management, especially if they would be suitable for timber production, is a forest plan decision, so I think what is really required here is a plan amendment process that would allow full public participation in the designation of each site. In addition, the criteria for designating NHP (presumably from the NWFP) seem to all apply at a large scale without considering the importance of the actual site being designated, so it is hard to see any rationale for the designation (and the court opinion doesn’t provide one). The court then finds that “plaintiffs had multiple opportunities to comment on the FS proposal to designate red tree vole sites as NHP,” but none of those occurred for the post-objection additions. The court regards all of this as “minor changes.” While viewing this as a NEPA problem might allow the new information to be considered not significant enough to trigger a supplemental EA, minor changes in a forest plan nevertheless require an amendment process. Maybe someone could explain how this is supposed to work.
The public also had no opportunity to review or comment on how the Forest viewed changes in the resource management plan for adjacent BLM lands. The changes would result in logging in 8 of the 27 red vole sites originally protected by the BLM plan, but the Forest determined (and the court agreed) that this “did not alter the number or spatial distribution of likely extant sites or records, or the amount or proportion of suitable habitat in reserves, and did not compromise the ability of other standards and guidelines or elements of the NWFP to provide a reasonable assurance of species persistence at the watershed scale.” That feels like it dodged the question, but I could buy the BLM assertion that these sites were actually a small part of the overall watershed.
Finally, in looking at the other factors relevant to granting an injunction, the court seems to discount the irreversible environmental damage because “that fact is true in any environmental case.” And it seems to punish plaintiffs for participating in settlement negotiations instead of filing a motion for an injunction earlier. The court does explicitly qualify its holdings as being “at this stage” (meaning for a preliminary injunction), and a fuller airing of the facts might sway the court in the plaintiffs’ favor, but meanwhile logging is ongoing.
Here’s another case that I don’t think has been included in a FS summary.
“San Juan Trail Riders, based in Durango, along with national groups Trails Preservation Alliance and Access Preservation Association, ask the court to set aside a record of decision by the Dolores Ranger District that closed 30 miles of trails to motorcycles and implemented restrictions on others within Rico-West Dolores recreation area.”