Jon Haber

NFS Litigation Weekly June 22, 2018

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Litigation Weekly June 22

The Forest Service and BLM violated NEPA when they issued leases for 13 parcels of land on the Santa Fe National Forest and failed to adequately consider their effects on greenhouse gas emissions and the effects of water use (D.N.M.)

  • 2 Bar Ranch Limited Partnership v. USFS

(New case.)  The ranch challenges a 20% suspension of season of use under its grazing permit on the Beaverhead-Deerlodge National Forest.  (The complaint exceeded the size limits for this site.  Oddly, I noted that the final appeal decision letter by the Forest Service reviewing officer stated “Your requested relief will be granted.”)  (D. Mont.)

(New case.)  Conservation Congress challenges the adjacent Lassen 15 and Joseph Creek projects on the Modoc National Forest.  (E.D. Cal.)

(New case.)  Environmental plaintiffs challenged a decision by the Office of Surface Mining Reclamation and Enforcement to allow the Kayenta Coal Mine to continue until 2020 on Navajo Nation Lands in northeastern Arizona.  (D. Ariz.)

(New case.)  Nine environmental groups are challenging the EPA and Corps of Engineers interpretation of the Clean Water Act requirements for identifying “waters of the United States” in their decisions to adopt regulations in 2015 and 2018.  (N.D. Cal.)

(Viewing the opinion requires a Lexis account.)  The circuit court held that the BLM did not have to supplement its programmatic environmental impact statement for the Federal Coal Management Program based on new climate change information because the Program was a completed federal action (however, they could challenge the sufficiency of the PEIS through challenges to specific leases and projects).  (D. C. Cir.)

 

Blogger’s bonus

Recreation businesses sue Trump administration over mining near Boundary Waters Canoe Area I

“In 2016, then-chief of the U.S. Forest Service Thomas Tidwell wrote to the Bureau of Land Management, warning of “the inherent potential risk that development of a regionally-untested copper-nickel sulfide ore mine within the same watershed as the BWCAW might cause serious and irreparable harm to this unique, iconic, and irreplaceable wilderness area.””

“President Donald Trump endorsed mining in Superior National Forest in a visit to northern Minnesota on Wednesday, saying his administration is taking steps to roll back an Obama administration policy to protect hundreds of thousands of acres in the national forest from mining and other industry.”

“The lawsuit by the business owners against the U.S. Department of the Interior — filed the day after Trump’s visit — illustrates the increasingly well-organized opposition to the proposed Twin Metals project. Environmental groups are incensed that the proposal would mean ore processing less than a half mile from Birch Lake, which feeds directly into the Boundary Waters.”

USFS prevails in Lostine Corridor lawsuit

At least in the proceedings before the magistrate judge, who makes recommendations to the district court.  This project is on the Wallowa-Whitman National Forest.

“The ruling stated the USFS followed federal law in the development of the Lostine River project designed to reduce the number of standing dead trees and forest density along the narrow corridor, improves egress and safety for visitors and firefighters, and provides a safe landing spot for helicopters employed for firefighting and search and rescue.”

How the Forest Service manages fires – examples

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A couple of recent stories provide some information about how the Forest Service is “managing fire,” and might provide some insights into the opportunity for public involvement (or not).

The Lion Point Fire is burning on the Sierra National Forest in California. Here is an article that basically incorporates the language (which may be boilerplate) from the Forest Service on its Inciweb site. (As of today, it’s burned 9 acres.)

“This lightning caused fire started approximately two weeks ago. Forest managers are determining the feasibility to manage this fire for multiple resource and protection objectives.  Desirable fire effects that are consistent with the forest plan and beneficial outcomes to the resource values at risk will be the main objectives for this incident.”

If you were the Incident Commander, and looked at the forest plan to see what it says about the desired outcomes and values at risk, you would find this in the 2004 Sierra Framework amendment ROD:

“Lightning-caused fires may be used to reduce fuel loads or to provide other resource benefits, such as conserving populations of fire-dependent species. Before wildland fires can be used, national forest managers must prepare a fire management plan that describes how prescribed fires and naturally caused wildland fires will achieve resource management objectives.”

My search for “fire management plan” did not match any documents on the Sierra website. Does anyone know if such a document exists, or what the managers of the Lion Point Fire are using?

The Sierra forest plan is currently being revised, and the 2016 draft revised plan would create four “strategic fire management zones” with different desired conditions and guidelines. (“Fire management plans” are not mentioned.)

Meanwhile, the revised forest plan for the Coconino National Forest in Arizona has just been released; it emphasizes forest health and thinning initiatives to reduce the risk of catastrophic wildfire. The latest “update” says “the revised management plan provides greater flexibility on the management of wildland fires and seeks to return the forest to its nature-based fire dependent ecosystem.” The Forest Supervisor says the new plan includes updated guidance in managing naturally occurring wildfires to burn dry forest fuels.

I found this ecosystem desired condition and these guidelines in the “fire management” section:”

“FW-Fire-DC

2 Wildland fires burn within the historic fire regime of the vegetation communities affected. High-severity fires occur where this is part of the historical fire regime and do not burn at the landscape scale.

FW-Fire-G

1 WUI areas should be a high priority for fuels reduction and maintenance to reduce the fire hazard.

2 Fire management activities should be designed to be consistent with maintaining or moving toward desired conditions for other resources.”

The Coconino forest plan describes the decision process for managing fires as follows:

“Site-specific analysis is conducted for prescribed fires and for any wildfire that extends beyond initial attack. For prescribed burns, the decision document is the signed National Environmental Policy Act (NEPA) decision. For wildfires, an analysis is performed using a tool like the Wildland Fire Decision Support System, and signed by the appropriate line officer.”

Which is not a “decision document” subject to NEPA.  And this language does not appear to address how to make a decision whether there would be an “initial attack” in the first place.

My take-away?  Forest plan desired conditions relevant to fires are even more important than for most projects if there is no later opportunity to influence a decision, so it is important for them to be specific and for them to vary in the forest plan based on the ecosystem and values at risk.  (While I didn’t look for them here, there should also be forest plan standards or guidelines applicable to suppression activities.)

Does a Fire-Ravaged Forest Need Human Help to Recover?

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That’s the title of this article.  It starts out with Chad Hanson walking the Rim Fire in California, so I thought there would be some interest here.  Like so many things, the answer I get from this is “it depends.”  It first depends on what the desired condition is.

Several months after the Rim Fire was extinguished, Eric Holst, a vice president of the Environmental Defense Fund, penned a blog stating that “letting nature heal itself” after a high-intensity fire is likely to result in a forest dominated by shrubs for many decades.”

As if that result is inherently wrong.  Whether that is a desired outcome or not is the kind of issue that should be addressed strategically through forest planning.  It may be fine from an ecological standpoint.  If the plan determines that speedier regeneration is needed for old growth species or economic reasons, that should be debated and decided at the plan level.

Then there is the science question of whether that would really be the outcome.  That depends on the nature of the site and the fire.  Regeneration problems seem to be the exception rather than the rule in the Bob Marshall Wilderness in Montana:

“The exception, he says, is in areas that have reburned in less than 20 years, too soon to allow for a seed crop to mature, especially on the west- and south-facing slopes that are hotter and drier.”

The key question to me then seems to be whether salvage logging in susceptible areas reduces the chance of reburns.  That is a determination that could be required at the project level by a forest plan standard (for those areas with a desired condition for rapid revegetation).

The site-specific effects of each salvage project would also need to be determined (and could provide reasons to not log despite the authority in the forest plan to do so), because …

“The scientific literature on post-salvage logging is contradictory. Some studies argue that the practice is beneficial because it churns up the ground, softening hard, water-repellant soils that sometimes form after an intense fire. Proponents also insist that the detritus left behind after logging inhibits erosion.  Critics such as Hanson say that the logging skidders decrease natural forest regeneration, kill seedlings, and compact the soil in a way that increases runoff and erosion, harming aquatic life in streams and rivers.”

Of course, maybe salvage logging is just as simple as how this reporter characterized the latest salvage efforts on the Lolo National Forest:

“The Lolo National Forest wants make the best of last year’s 160,000-acre Rice Ridge fire by logging some trees…  If they can get the chief of the Forest Service to grant an Emergency Situation Determination, the public will not be allowed to object to the project once Mayben makes her final decision.”

 

 

Ranchers intimidate science they don’t like

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Data source: “Cattle Death Loss,” a report by the USDA National Agricultural Statistics Service

A wolf researcher at Washington State University has resigned as part of a settlement of a case alleging that the university infringed on his academic freedom.

“Wielgus angered ranchers with his research of wolf behavior. He concluded the state’s policy of killing wolves that preyed on cattle was likely to increase cattle predation because it destabilized the structure of wolf packs.

Ranchers complained to the Washington State Legislature, which cut Wielgus’ funding and demanded he be removed as principal investigator on his ongoing work.”

And they got what they wanted.  So, if you’ve got enough money and political power, not only can you buy your own researchers, but you can silence publicly funded independent research.  Do you suppose they might be able to influence the research conclusions, too?  (Somehow it’s a little hard to see “powerful” environmental groups making this trick work for them.)

 

 

 

Should dry forests be considered suitable for timber production?

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Recent research is showing that lower elevation forests are not regenerating after fires as they have historically.  From the abstract of the research cited in this article:

“Results highlight significant decreases in tree regeneration in the 21st century. Annual moisture deficits were significantly greater from 2000 to 2015 as compared to 1985–1999, suggesting increasingly unfavourable post‐fire growing conditions, corresponding to significantly lower seedling densities and increased regeneration failure. Dry forests that already occur at the edge of their climatic tolerance are most prone to conversion to non‐forests after wildfires. Major climate‐induced reduction in forest density and extent has important consequences for a myriad of ecosystem services now and in the future.”

One of those consequences should flow from NFMA requirements for sustainability and ecological integrity.  To put that in simplistic terms, if the land “wants” to be non-forest in the future climate, we have to let it be non-forest.  And non-forested lands are not suitable for timber production, regardless of whether we could plant and maintain a plantation there.  I don’t recall seeing any discussion of this in forest plan revision material I have reviewed recently.  There is also requirement to use the best available scientific information, so a suitability evaluation of low-elevation forests should go beyond what is currently growing there to address what would be expected there in the future.  Many national forests could end up with fewer suitable acres.

In their own words, tech industry goes political, too

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We recently had a discussion about the recreation industry going political (especially with regard to national monuments), and there have also been posts about the changing economics of rural communities.  Here’s an op-ed from some high-tech entrepreneurs about why they want to be near public lands and about getting involved in their management.

“Public lands provide inspiration for innovation within our companies, they provide the backdrop for employee wellness and they serve as a competitive advantage in our ability to attract and retain talent.”

“Access to open spaces and public lands is what makes our businesses tick. They are not just a means by which we refuel, but are also providing a foundation of solid work culture, creativity, innovative thinking and a spirit of entrepreneurship. There are real benefits that ripple throughout our business model that depend on public lands and our access to vast wild places.”

“There is real data and an undeniable economic argument behind fighting for policies such as full funding and permanent reauthorization for the bipartisan Land and Water Conservation Fund, standing up against the rollback of protections for our national monuments and other public lands, and saving public lands at the doorstep of Yellowstone from industrial-scale gold mining. Montanans should have the right and the opportunity for intentional public engagement in the decisions that are made about our public lands. And now, it’s more important than ever for technology companies like ours, and others, to get engaged.”

My suspicion has been a little more simple-minded.  When you can start a company that ships its products through the internet, and you can locate your business wherever you want, why wouldn’t you go where you want to be?  And then you want to keep it that way.

NFS Litigation Weekly June 1, 2018

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Litigation Weekly June 1

The court upheld the Lava Hazardous Fuel Reduction Project on the Modoc National Forest involving northern spotted owls and gray wolves.  (E.D. Cal.)  (See additional discussion below.)

(New case.)  This case involves the Hyde Park Wildland Urban Interface Thinning and Prescribed Fire Project on the Santa Fe National Forest, which applied a Healthy Forest Restoration Act categorical exclusion to 1,840 acres, most of which is allegedly found in inventoried roadless areas.  (D. N.M.)  (See also this article – with a lot of comments.)

(New case.)  At issue is a 2017 legal opinion issued by the Department of Interior that reversed its longstanding interpretation of the Migratory Bird Treaty Act so that it no longer applies to incidental killing of migratory birds by activities like oil spills and wind farms.  (S.D. N.Y.)

 

Blogger’s notes on Conservation Congress:

Although the Fish and Wildlife Service had found that the wolf “may be present” in the relevant counties, the nearest pack was 20-30 miles away, and the only other wolves that had been in California were last located in Oregon, with no reason to think they would be drawn to the project area over other areas (since wolves are a habitat generalist). What was interesting to me about the wolf issue was that once the court agreed that there was “no effect” on wolves, that also meant that plaintiffs could not be harmed, and therefore, “Plaintiff has failed to establish standing here because even assuming Plaintiff can establish that its members have an interest in the gray wolf, any injury to that interest is conjectural.”

For spotted owls, the court found: “The FWS appropriately analyzed critical habitat and observed that: (1) no nesting/roosting or foraging habitat would be directly affected by the Project; (2) while foraging and dispersal habitat would be indirectly affected, those effects would be insignificant; and (3) dispersal habitat would be directly affected by the removal of six acres and the degradation of 33 acres of habitat, but that too, in the larger context of the subunit, was also insignificant.”

The court used the word “insignificant” here, but the FWS actually said Project activities within the NSO activity centers would have “[s]ignificant negative effects to northern spotted owls potentially occupying” those activity centers by altering their ability “to breed, feed, and shelter within the action area” (emphasis added). The Court added that, “The BiOp, however, recognized the forest-health benefits of the Project and concluded that “[a]lthough there will be short and long term negative effects to northern spotted owl habitat, the proposed action will help sustain northern spotted owl habitat over the long term.”

The definition of “effects” in the CEQ NEPA regulations requires that the beneficial and detrimental effects be considered separately, “even if on balance the agency believes the effect will be beneficial.” However, the court held that there were no significant impacts that would have triggered an EIS. In doing so it also said there was no scientific controversy, even though there was, according to the Forest Service (and as suggested above), “a difference of professional opinion on the amount of effect” between it and the FWS.

NFS Litigation Weekly May 18, 2018

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Litigation Weekly May 18

(Update.)  Plaintiffs asked for an injunction pending an appeal to the Ninth Circuit of the district court’s denial of a preliminary injunction against the North and South Pioneer Project on the Boise National Forest.  (D. Or.)

(New case.)  Environmental plaintiffs challenge the North Hebgen Project, up to 5,670 acres of commercial and non-commercial logging, on the Custer-Gallatin National Forest.   They also challenge a 2015 amendment to the forest plan, Amendment 51, which they say removed or modified 56 goals and standards in the Gallatin Forest Plan.  (D. Mont.)

(New case.) A doctor seeking to treat a tree-sitter protesting the Mountain Valley Pipeline Project has sued the George Washington and Jefferson National Forest for a closure order that allegedly violates his Constitutional rights to provide medical treatment (freedom of speech, freedom to exercise religion and due process). (W.D. Va.)

(New case.) Plaintiff environmental groups seek a supplemental EIS for the Kulu Timber Sale on the Tongass National Forest.  (D. Alaska)

(New case.)  Environmental groups and landowners challenge 287 oil and gas leases of close to 150,000 acres in previously undeveloped parts of Montana that were based on four EAs.  (D. Mont.)

Ugly Americans get involved in travel planning

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“The debate over snowmobile access in the Tahoe National Forest has taken an ugly turn with a spate of emails, social media posts and online comments filled with foul and abusive language.

Several people pushing for more restrictions on snowmobiles in the 800,000-acre forest that straddles the Sierra Crest have been the targets of online abuse.

The problem has gotten bad enough that Forest Service officials disabled a portion of the online comment system when they suspected people used it to target other commenters with nasty emails.”

This is a symptom of a much bigger problem in this country right now, but the problem it causes federal agencies is that they will have to start questioning the results of the public comment process where there is any indication that people have been intimidated from participating.

Public radio asks,”How Much Of The Chetco Bar Burn Should Be Salvage Logged?”

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The Forest Service says it will salvage log 4,000 out of the 170,000 acres burned.

Smith heads Health Forests Healthy Communities, a timber industry-affiliated non-profit that advocates for active forest management. He says the relatively small post-fire logging project the Forest Service is planning is not only economically inadequate …

“ … but also a missed opportunity to reforest more of the landscape for the future.”

Smith says that salvage logging — followed by replanting — helps restore forest health. He says it’s important for fire safety, too.

“Less salvage means more dead and dying trees and snags that not only fuel the next big fire but also put firefighters in danger the next time they need to go in there and put out a fire,” he says.

The Oregon Society of American Foresters says post-fire logging can foster “timely development of desirable forest conditions.”

Still, in the Environmental Assessment for the Chetco Bar salvage project, Forest Service officials don’t claim any forest health or fire safety benefits. According to project coordinator Jessie Berner

“… We are trying to capture the value of those trees to try to recoup some of the economic value of that timber in support of our local communities.”

Salvage logging can definitely have economic benefit. But the scientific evidence that it leads to healthier forests is thin … Jerry Franklin is professor emeritus of ecosystem analysis at the University of Washington.

“I’m not aware of any science that supports the notion that salvage logging contributes significantly to ecological values, ecological recovery,” he says

“The best thing to do generally is to allow it to develop following the kind of natural processes that have been going on for thousands of years,” he says.

One point of disagreement might be whether that desired “landscape of the future” or “desirable forest conditions” constitutes “ecological recovery.”  Ecological sustainability and integrity are required for national forest lands.