Jon Haber

Pacific northwest collaboratives

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This article is about the fact that the Malheur National Forest hasn’t had a lawsuit in 15 years.

Hannibal said “three to four times the amount of work” is getting done nowadays compared to 15 years ago. Timber sales data from the Malheur National Forest tell a similar story. From 2010 to 2016, the volume of timber cut from the forest more than doubled. The collaboration and a 10-year stewardship contract gets credit for saving the last sawmill in Grant County, Oregon, too.

It also links to the “Collaborative Directory” for the Pacific Northwest Region.

Every national forest in the Pacific Northwest has now aligned with at least one outside “collaborative,” as they are called. The idea is to build trust and get compromises done at the front end of proposed timber sales, thinnings or controlled burns. That way, the work doesn’t get bogged down in litigation or analysis paralysis later.

A Forest Service directory lists 36 collaboratives associated with the 16 national forests in Oregon and Washington state. Some are more successful than others. Brown said the greater presence of endangered species west of the Cascades complicates the work of the groups active in wet-side forests.

It’s interesting to see how many groups are working where, but I just want to highlight that last point.  It suggests to me that addressing at-risk species is the key to successful projects, and that forest plans can and should provide the framework for doing so.  It would be nice to see revised forest plans treat this as an important issue and consider alternative approaches in that context.  On the other hand, there are no references to any forest plans or forest planning (as opposed to project plans and planning) in this document.  What am I missing?

NFS Litigation Weekly October 19, 2018

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Forest Service summaries:  Litigation Weekly Oct 19

The court refused to dissolve the current injunction against the Fleecer Mountains Project on the Beaverhead-Deerlodge National Forest because the Forest did not comply with the court’s instructions to consult with the Fish and Wildlife Service on the effects of the forest plan on Canada lynx based on new information that lynx “may be present” forest-wide (not just in the project area).  (D. Mont.)

(Notice of intent to sue under ESA.)  The exploration project on the Caribou-Targhee National Forest was approved before the grizzly bear was relisted under ESA by a recent court decision, and compliance with ESA should therefore be required.

Greater sage-grouse amendment amendment

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Three years ago the Forest Service had this to say about the greater sage-grouse:

Two US Forest Service Records of Decision and associated land management plan amendments are the culmination of an unprecedented planning effort in cooperation with the Bureau of Land Management to conserve greater sage-grouse and its habitat on National Forest System lands and Bureau of Land Management-administered lands.

Last week it was this (and they initiated a public comment period):

Since approving the plan amendments in 2015, the Forest Service has gathered information and determined that the conservation benefits of Forest Service plans in Nevada and other states can be improved. That is, through repeated scoping, close collaboration with state and other federal agencies, and internal review, the Forest Service has identified proposed changes in the text of the greater sage-grouse plan amendments which would improve their clarity and efficiency and better align them with the Bureau of Land Management and state plans.

Specifically, the Preferred Alternative makes modifications to land management plans within the issue areas of: Habitat management area designation, including designating sagebrush focal areas as Priority Habitat Management Areas compensatory mitigation and net conservation gain; minerals plan components and waivers; exceptions and modifications; desired conditions; livestock grazing guidelines; adaptive management; treatment of invasive species; and changes to clarify text and eliminate errors and redundancies.

Oddly, it sounds like all of the new information must say that sage-grouse are doing better than we thought three years ago and/or they are less vulnerable to oil and gas drilling than we thought three years ago. The most important change in forest plans is probably this one (from an AP article):

The Obama administration created three protection levels for sage grouse. Most protective were Sagebrush Focal Areas, followed by Primary Habitat Management Areas and then General Habitat Management Areas. The Forest Service plan reclassifies the 1,400 square miles (3,600 kilometers) of Sagebrush Focal Areas as primary habitat.

The focal areas allowed no exceptions for surface development, while primary habitat allowed for limited exceptions with the agreed consent of various federal and state agencies. Under the new plan, the cooperation of states and some federal agencies to exceptions in primary habitat will no longer be needed for some activities but can be made unilaterally by an “authorized officer,” likely an Interior Department worker. That appears to be an avenue for opening focal areas to natural gas and oil drilling.

This amendment decision will be subject to the 2012 Planning Rule requirements for species viability and species of conservation concern (SCC) (from the DEIS):

… the FS is considering the effect on the greater sage-grouse as a potential SCC for each LMP that would be amended by this decision. The analysis in this DEIS shows that the amendments maintain ecological conditions necessary for a viable population of greater sage-grouse in the plan area for each LMP to which the amendments would apply.

Recall that the current conservation strategy was “generally viewed as keeping the bird from being listed for federal protections under the Endangered Species Act.”  What will the Zinke that is charge of the Fish and Wildlife Service have to say to the Zinke that is in charge of the BLM (and apparently the Forest Service)? Why does this remind me of political appointee Julie McDonald’s interference with decisions about lynx? Is it more about a new boss than about new science?  “A federal lawsuit is likely.”

Some more background is provided here.

NFS Litigation Weekly October 12, 2018

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Forest Service summary:  Litigation Weekly Oct 12

The court upheld the North Fork Mill Creek A to Z Project on the Colville National Forest (E. D. Wa.)

 

Blogger’s note:

The 9th Circuit had previously refused to enjoin the project and that decision was explained here.  This is important because the district court held that most of the issues involving fisher and pine marten had been finally determined by the 9th Circuit.  Even though preliminary injunctions don’t normally do that, on this issue the facts had not changed and the arguments were the same.

On the other hand, whereas the 9th Circuit did not get much into the question of contracting out the NEPA process (apparently subcontracted as part of a stewardship contract), this district court did.  The issue was treated as a challenge to the bidding process, which non-bidders have a hard time doing.  I thought there would be a NEPA issue about awarding a timber sale contract before the NEPA process was completed (there can no commitment to actions that would have environmental impacts prior to completion of NEPA requirements).  Maybe someone could enlighten me about what “stewardship contracts” actually commit the parties to do.

Here is an article also summarizing the court decision.

Sue and … keep suing

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Search this site for previous lively discussions of “sue and settle.”  Here is the latest attempt to stop it.  In September, the Interior Department extended EPA’s recent restrictions on litigation settlement agreements to the rest of the Department.

Here’s someone’s perception of the problem. Basically, there is rampant secret collusion between environmental groups and the government, which leads to substantive regulatory changes that “cost the economy billions of dollars and thousands of jobs, without Congressional approval.” Actually it is the laws passed by Congress that say the regulations must be produced that would have any impact, not the lawsuit forcing compliance with the law.

And here is another fact:

A legal analysis published by lawyer Ben Tyson in the Virginia Law Review, for example, looked at 79 settlements brokered between environmental groups and the Obama administration, and found that all but four of the agreements involved setting deadlines for compliance.

According to this article (which also provides an example of how this policy has worked in one case):

The Trump administration says the new rules are necessary to prevent government agencies from colluding with environmental groups to reach settlements that favor their interests. But critics say these rules only delay the implementation of federal laws designed to protect the environment, leaving ecosystems and wildlife vulnerable while agencies drag their feet.”

Though regulated industries and administration officials denounce lawsuit-happy environmental groups, the rhetoric surrounding sue and settle typically disregards the fact that agencies choose to settle because, as Bernhardt puts it in his order, “the Department is likely to lose.” According to a letter from 60 former federal attorneys criticizing the new EPA policy, “It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA.”

I’ve not seen evidence of “colluding with environmental groups.” Unless that includes DOJ evaluating the case and admitting it’s a loser. (Focusing on environmental groups also ignores the fact that settlements also benefit the Pacific Legal Foundation when it sues over ESA DE-listing requirements, and then there’s those regulations that a new administration would rather settle out of than defend.)

I’m a big fan of transparency, and I’m not sure what would justify not disclosing the terms of a settlement. As for public comments, I doubt if there would be a lot of interest in whether a legal deadline was missed or not.

However, the actual intent may be for this to “prolong the settlement process,” and thereby reduce the number of lawsuits that budget-limited plaintiffs can afford to bring.  But it could just as likely mean that plaintiffs would rather avoid the new process and spend their time in court, and a judge will have to decide more cases, which will almost always be against the government, and the government will have to pay even more money in legal fees (there are also new incentives to litigate the legal fees, which could lead to even more of them).

Coastal pine marten proposed for listing as a threatened species

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The U. S. Fish and Wildlife Service has proposed listing the coastal (Humboldt) marten, found in older forests in California and Oregon, as a threatened species.

“Martens are vulnerable to predation and increased competition in habitats that have been subject to either high–moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts…”

As a threatened species, the prohibitions in ESA against incidental take (§9) would not apply, but the FWS usually applies them using a special §4(d) regulation, which it is doing here. As is also common, they carve out exceptions to the prohibitions where take of the marten would be allowed; two of which would be relevant to national forest management:

(1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

(3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.

Here is the rationale:

“Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species’ long-term viability and conservation.”

What this means is that forestry management activities that are not for the purpose of limiting fire or not consistent with the species’ needs would violate ESA if they harm any martens (unless they obtain an incidental take permit).

Regarding (1), I would ask whether all it takes to comply is for a project to say that it is for this purpose, or considering some of the discussions on this blog, does there have to be scientific support for the idea that a particular practice would actually have the intended effect.

Regarding (3), there is obviously a role for forest plans to include coastal marten conservation prescriptions. Presumably, plan components to create and maintain complex tree and shrub conditions for martens would be consistent with the NFMA requirement to provide ecological integrity and conditions needed for viability of at-risk species. What I haven’t seen before is a process by which the FWS reviews a forest plan for consistency with §4(d) criteria for a threatened species.

There could be future challenges to projects for violation of §9 because they do not meet these criteria.  The Center for Biological Diversity believes that “industrial logging” could meet these criteria and continue to occur in marten habitat.  At least (1) seems like it could be an exception that swallows the rule.  If it were dropped for fuel reduction projects, they could still occur if consistent with marten conservation under (3).

NFS Litigation Weekly September 28, 2018

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Forest Service summaries:  Litigation Weekly sept 28

The Santa Fe National Forest must reinitiate ESA consultation on the effects of its 2012 travel management decision on the subsequently listed Jemez Mountain salamander.  (D. N.M.)

The Olympic National Forest did not explain why it was not feasible for the Navy to use private land for electronic warfare training, as required for issuance of a special use permit by its forest plan (but further briefing will be allowed).  (W.D. Wa.)

A magistrate judge agreed that the Santa Fe National Forest could deny a request to put a new telecommunications facility on Tesuque Peak.  (D. N.M.)

(New case.)  Off-road vehicle plaintiffs challenge the West Delores Roads and Trails Travel Management Project on the San Juan National Forest.  (D. Colo.)

The U. S. Fish and Wildlife Service improperly delisted the threatened Greater Yellowstone Ecosystem population of grizzly bears.  (D. Mont.)

The Lewis and Clark National Forest took too long to cancel oil and gas leases in the Badger-Two Medicine “traditional cultural district” due to NEPA deficiencies.  (D. D.C.)

 

Blogger’s note on the FSEEE case:  One of the other issues was whether another forest plan requirement was met that “interests and needs of the general public shall be given priority over those of the applicant.”  The Forest Service was upheld on this point because the Navy’s operating procedures require that they relocate if a camper is occupying the mobile emitter truck site, and the public user wishes.  I’m imagining myself telling the Navy to get lost.

Blogger’s bonus:

The BLM appears to have violated FLPMA and when it issued new procedures for public participation in oil and gas leasing in areas identified as greater sage-grouse special management areas in land management plans (as amended by the Greater Sage-Grouse Plan Amendments), and a preliminary injunction against their use for future leases was granted.  (D. Idaho)

The U. S. Fish and Wildlife Service must reconsider its decision to not list the species, found in California and Oregon forests, under ESA.  (N.D. Cal.)

 

Gila plan revision’s “most divisive issues”

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This is an account of a series of meetings that seems like a useful step in the forest planning process that I don’t think I’ve seen before:

Over the last year, the Forest’s planning team has held dozens of public meetings regarding the ongoing revision process. Through those, and other submission options, they have collected hundreds of comments on various aspects of the Gila’s management. Heather Bergman, of Peak Facilitator Group, called this round of meetings the “last call for ideas,” at Tuesday’s meeting in Reserve. Throughout the meetings, Bergman — whose company the Forest Service contracted to consult on the plan revision process — and Gila planner Matt Schultz showed attendees the range of opinions the team had gathered on each of the most divisive issues to that point.

These might be the same thing as “significant issues” under NEPA that warrant development of alternatives.  Here they are:

  • Livestock grazing management (“permittee should decide how resources are managed on their allotment” vs. “more restrictions placed on permittees” or eliminate grazing)
  • Land adjustments (“less public land” vs. “acquire desirable lands”)
  • Wilderness (delist some wilderness vs. significantly expand wilderness)
  • Riparian area management, restoration tools and “a few more”

Here’s what the facilitator took home:

“It is really amazing when you think about all of the different things the Forest Service manages on the Gila, these are the only things there is controversy on,” Bergman said. “There is a great deal of consensus on management, which is really nice.”

Lucky them!  Wildlife apparently didn’t make this list, which is not uncommon, even in places where it is a source of controversy, which is most places.  Maybe that’s because it is the underlying reason for other divisive issues like livestock grazing and riparian management.  (Maybe fire management is included under “restoration tools?”)

“Land adjustments” is not usually on this list, but at least on the Gila (home of Catron County) it looks like forest planning is seen as an opportunity to bring up privatization again.

Hearing on EAJA “abuse”

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Montana, Rep. Greg Gianforte (mugshot from reporter assault case above) chaired a hearing Thursday in a U.S. House subcommittee seeking suggestions on ways to modify the Equal Access to Justice Act (EAJA).  At the Subcommittee on the Interior, Energy and Environment hearing, Gianforte called environmental groups “extremists” and accused them of stifling “responsible use of natural resources” and said “wealthy environmental organizations” were taking advantage of the law’s loopholes, amounting to an “abuse” of taxpayer dollars.

This article includes some helpful perspectives on the law.  Here’s a summary of testimony by a law professor:

Sara Colangelo, a visiting professor of law at Georgetown University Law Center, urged the congressman to seek more information from government agencies on EAJA cases. Better data tracking would provide the public a clearer picture of what is actually going on, she said.

“When we see the data in front of us, we’ll come up with better changes,” Colangelo said.

In fact, the 2012 GAO report noted then that data collection by agencies was either hard to find or nonexistent.

“As a result, there was no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments, or the statutes under which the cases were brought,” the report said.

Colangelo also said she sees little evidence that environmental groups would consider EAJA payments when deciding whether to contest a project. In other words, the EAJA payments don’t invite litigation, she said.

Also,

Rep. Stacey Plaskett, D-Virgin Islands, noted in her opening statement as ranking member that the Equal Access to Justice Act is important to U.S. citizens seeking to hold government agencies accountable for actions or inaction. Ninety-eight percent of EAJA fees go to veterans fighting for disability and for Social Security cases, she said.

Based on the 2011 GAO report, Plaskett said most of the lawsuits seeking EAJA funds were filed by trade groups, not environmentalists, a fact Colangelo also made saying that attorney fee awards to environmental groups were a “miniscule” part of Forest Service or Bureau of Land Management budgets.

So any legislation would appear to have little benefit, and would have to target the real “extremists” (and who gets to decide who those are?).  (Searching this site for EAJA will turn up several prior discussions of this topic.)

Forest Service promotes wildlife overpass

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Despite a national effort (see pp. 29-30) to encourage it, and requirements in the 2012 Planning Rule to provide wildlife habitat connectivity, the Forest Service doesn’t seem to like to assert itself much in cross-boundary planning for such connectivity.  Here is a big exception, which should be an example of what can be done – and what should be done where the Forest Service is responsible for improving conditions for at-risk species.

By revamping the highway with wildlife’s needs in mind, officials were able to broker an easement with the U.S. Forest Service to add the additional lanes.

“It’s a win-win. We could improve transportation. We did lose some national forest,” said Garvey-Darda referring to construction of additional highway lanes. “But we can connect the North Cascades and the South Cascades.”

More importantly, I was told that the forest plan provided the basis for the Forest Service position in the negotiations that the North Cascades and South Cascades should be connected.  I can’t find language in the current plan that would clearly address this, but I know the plan revision process was moving towards useful language for connectivity.  Other revised plans are including language that at least provides some intent to participate in highway planning.  This is from the recently revised Kootenai National Forest Plan:

FW-DC-WL-17. Forest management contributes to wildlife movement within and between national
forest parcels. Movement between those parcels separated by other ownerships is facilitated by
management of the NFS portions of linkage areas identified through interagency coordination.
Federal ownership is consolidated at these approach areas to highway and road crossings to facilitate wildlife movement.

This would at least tell a Forest it needs to be a player and give them some leverage.  However, for at-risk species its role is to be a leader, and with nothing more than a desired condition and without identifying any linkage areas in the plan this would not meet any substantive requirements of ESA or NFMA (recovery or viability).  (Similar language in the uniform plan amendment for lynx does apply to mapped linkage areas.)