Jon Haber

Forest Service prosecutes mudders

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The federal government does go to court sometimes to protect our natural resources, here in North Dakota:

Three men accused of damaging U.S. Forest Service land four years ago while going mudding in the Little Missouri National Grasslands now face criminal charges in federal court.

Five full-sized pickups got stuck in the mud in the area known as Estes Springs. The individuals involved then got two road graders to try to recover the pickups, but then got the road graders stuck in the wet and muddy conditions.

The area has signs indicating it is National Forest Service land and directing the public to stay on established roads and trails.

Jan Swenson, executive director of the Badlands Conservation Alliance, saw photos of the incident four years ago and said it looked like the pickups had driven donuts in the mud following a rainstorm.

“It is great to see the Forest Service following through,” Swenson said. “It would be encouraging to see other government entities follow through on enforcement issues as well.”

The next extinction on the national forests

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Based on this year’s winter survey, the federally endangered South Selkirk mountain caribou herd may be down to three individuals – all females.  That would not be good for continued viability of the species on national forest lands.  We can try to blame Canada for what’s happened to this cross-boundary herd, but, “The mountain caribou have struggled as old growth forests have been thinned by logging and other industrial activities, George said. With thinner forests the caribou have become more susceptible to predation.”  There has been a lot of that on the Idaho Panhandle and Colville national forests over the years, though maybe not recently.  However, as recently as 2007, the Forest Service lost a lawsuit brought because of their failure to protect caribou from snowmobiles.

It would be hard to say that national forest management has had nothing to do with their current status.  Mark Hebblewhite, a Canadian wildlife biologist at the University of Montana and a science adviser to the Canadian government put it this way:

“It’s game over …  The functional loss of this herd is the legacy of decades of government mismanagement across caribou range.  It is completely unsurprising. Bad things happen to small populations.”

Meanwhile, north of the border, the boreal woodland caribou may become Canada’s spotted owl, as conflicts with logging are driving it towards extinction.   A letter from the Alberta government to Ottawa said “now is not the time to impede” an economic recovery currently underway in Alberta.  Maybe when there are three females left.

NFS Litigation Weekly April 20, 2018

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Litigation Weekly April 20

The District Court accepted the magistrate’s recommendations with minor clarifications and upheld livestock grazing activities on the Malheur National Forest.  (D. Or.)  Also reported here.

(New case.)  Three southwestern tribes filed the third lawsuit challenging the Rosemont mine on the Coronado National Forest.  (D. Ariz.)  Also reported here.  (See below also.)

(New case.)  According to the complaint, the Tonto National Forest reopened portions of an allotment that had been closed since 1979 without conducting an analysis of the effects.  (D. Ariz.)

(Notice of intent.)  Plaintiffs seek reinitiation of ESA consultation on recreational summer cabin permits in Mount Graham red squirrel habitat as a result of recent fires on the Coronado National Forest.

 

Blogger’s note on the Tohono Oodam case:  The complaint challenged the Forest Service interpretation of the 1872 Mining Act that it is required to provide unpatented lands for disposal of the mining waste.  Here is a summary of this point from the article linked above:

“The Coronado may impose reasonable conditions to protect surface resources, but cannot materially interfere with reasonably necessary activities under the General Mining Law that are otherwise lawful,” Dewberry (the forest supervisor) wrote.

The lawsuit, however, asserts that the 1872 mining law gives people a right to occupy and use public lands for unpatented mining claims — the kind Hudbay has on Rosemont’s national forest lands — only when they contain a valuable mineral deposit. There’s no evidence of any mineral deposits on the lands where waste rock and tailings will go, the suit says.

“Say you are doing business and it results in some kind of waste. You can’t just put it in a neighbor’s land. You have to accommodate it on your own property, or find a place to get rid of it, without causing an environmental threat,” attorney McIntosh said on behalf of the tribes. “You can’t put it on public lands and say the Forest Service can’t say no.”

Making decisions to not mine national forests

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Here’s a role reversal for the Forest Service, who has recently been in the news more for making it easier to extract things from federal public lands.

New oil, gas and mineral exploration and development will be barred in the San Gabriel Mountains National Monument under a long-awaited management plan, released Thursday, governing the largest wilderness in Los Angeles County.

Of course the forest supervisor hinted that the main reason might be “there just aren’t any significant oil, gas, mineral or timber aspects to this monument.”

The U.S. Forest Service wants to ban new mining claims on about 30,000 acres of public land in the mountains north of Yellowstone National Park for 20 years, a move they say will hamper mine development and protect the environment.

Forest officials released a draft environmental assessment of the proposed withdrawal Thursday that considered potential environmental and economic impacts from future mine development. A 20-year ban wouldn’t affect existing mining claims but would likely limit future mining development.

The Forest Service’s environmental assessment will now be reviewed by the Department of the Interior, and Interior Secretary Ryan Zinke has the final say on whether the ban will be extended and for how long.

Zinke, who has opposed mining near the Paradise Valley, said in an emailed statement that he looks forward to “hearing from the community and seeing how we can work together to protect this area.”

Zinke has been accused of treating his native Montana different from other parts of the country.

Which comes first, the NEPA or the ESA (process)?

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My experience was generally that the consulting agencies wanted to have the last word. That is that they didn’t want to consult on anything unless it was the final decision by the Forest Service. The expectation was that the FS would just incorporate any needed changes that resulted from the consultation process. I wondered if the public needed be involved in these changes in the decision, but I didn’t think NEPA would apply because any changes required by ESA would further mitigate adverse impacts and/or be non-discretionary.

The court’s recent opinion in Bark v. Northrop discusses this part of the NEPA process. It involves a proposal to build the Timberline Ski Area Mountain Bike Trails and Skills Park on the Mt. Hood National Forest. As approved, the project is a chairlift-assisted mountain biking development with seventeen miles of bike trails and a small skills park within an area designated for managed recreation.

It turns out that after consulting with NMFS on the project’s effects on the Lower Columbia River steelhead the Forest Service issued a New Information Report (“NIR”) and concluded that NMFS’s discussion of the Project’s effects was consistent with the effects considered and disclosed in the project EA. (This actually happened twice, and the Forest Service made the point that the second set of terms and conditions were actually more protective so that impacts had been decreased.)

The court agreed that no supplemental NEPA analysis was necessary because “the mere fact that NMFS found likely adverse effects does not trigger further NEPA analysis unless NMFS’s finding implicates impacts that could significantly affect the environment in a manner not already considered by the Forest Service.”  The effects were minor, and the difference in effects was minor.  (The court reached a similar conclusion for new information about the western bumblebee, a FS-designated sensitive species.)

The Forest Service has little guidance on how to make determinations in accordance with NEPA regarding the significance of new information, never mind how that interfaces with ESA. “NIRs” are not a “thing” recognized in the agency NEPA directives. But the FS got it right this time.

Logging planned in national park – by environmentalists

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Really.  Redwood National Park and three state parks.  Led by Save the Redwoods League.

The new task for this century, Hodder said, is to restore landscapes that were logged but now exist in parks in a damaged, unnatural state.

That means removing old logging roads, restoring streams to bring back salmon and other fish, and doing everything to help second-and-third growth redwood trees get bigger, he said. On April 27, the league is scheduled to sign an agreement with the California state parks department and the National Park Service to allow for “restoration forestry” funded by the league as a way to undo the damage from industrial logging and recreate forests that are more natural.

All four parks involved together have about 120,000 acres of forests. Of those, about 40,000 acres is old-growth redwood, and the other 80,000 acres are in formerly logged areas that project planners hope to thin and restore in the coming decades. Most of the trees cut down will be Douglas fir, with some second-growth redwood and hardwoods like tan oak, said Paul Ringgold, a forest ecologist and chief program officer of the Save the Redwoods League. Roughly 30 to 70 percent of the trees will be taken out in the 10,000 acres treated between now and 2022, he said, and in some cases, sold to timber companies.

“These stands are a legacy of clear-cut logging,” Ringgold said. “We want to restore these areas as close as we can to the way they were pre-logging.

Forest plan contributes to recovery of the lesser long-nosed bat

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This cave-roosting nectar-feeding bat was listed as endangered in 1988, and has just been delisted.   According to the U. S. Fish and Wildlife Service:

The primary concern regarding future viability of this subspecies continues to be roost site disturbance or loss. This is primarily an issue related to human activities and destructive actions at these roost sites.

One of the three recovery criteria is “Protect Roost and Forage Plant Habitats.”  In its final delisting rule, the FWS cites the recently revised Coronado National Forest Plan as an existing regulatory mechanism that would protect the species (one of the 5 factors to be considered in listing a species, and a key one for this species):

More than 75 percent of the range of this species in the United States is on federally managed lands and these federal agencies have guidelines and requirements in place to protect lesser long-nosed bats and their habitats, particularly roost sites… If the lesser long-nosed bat is delisted, protection of their roost sites and forage resources will continue on Federal lands because agency land-use plans and general management plans contain objectives to protect cave resources and restrict access to abandoned mines, both of which can be enforced by law enforcement officers. In addition, guidelines in these plans for grazing, recreation, off-road use, fire, etc., will continue to prevent or minimize impacts to lesser long-nosed bat forage resources. The Coronado National Forest’s 2017 Land and Resource Management Plan (LRMP) includes standards and guidelines to retain and enhance areas with paniculate agaves in order to benefit the lesser long-nosed bat.

Federal land management plans directly address the main threats to the species, providing assurance that improving trends in population numbers would continue, and allowing delisting to be warranted.  Recovery of listed species should be an important goal for plan components in revisions of the rest of the national forest plans.  (Even where the value of a species is not as obvious as being “vital to the tequila industry.”)

Sometimes it takes a lawsuit

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A couple of examples of how lawsuit settlements can play out on national forests.

“How Cross-Country Skiers Got Tahoe National Forest To Rethink Snowmobile Use; Future Plan Could Cut Access In Half”

“Both cases were settled around 2012, and it took years for the Forest Service to come up with a plan. Now, it is rethinking how snowmobilers explore public land. Its final plan will determine what percentage of the forest and what trails are used for snowmobiles.”

This is a typical settlement, where the Forest Service agrees to undertake a process, with more analysis, without committing to an outcome, but sometimes that outcome can make the plaintiffs happy (and maybe prevent another lawsuit).  The settlement occurred here after the Forest Service lost the lawsuit.

“US 70 bypass around Havelock gets green light after lawsuit settled”

“In an agreement announced Monday, NCDOT will give a conservation easement to protect land it will own along the 10.3-mile bypass, as well as provide $5.3 million to the N.C. Coastal Land Trust to create a fund to protect land in and around the Croatan National Forest. NCDOT also will establish a $2 million revolving loan fund that could be used to protect property elsewhere in Carteret, Craven and Jones counties.  As part of the settlement, the two federal agencies have committed to maintaining woodpecker habitat between the bypass and the town of Havelock with the use of controlled burning, which longleaf pines need to reproduce and thrive. The U.S. Forest Service has agreed to carry out the burning.”

The Forest Service was not a party to this one, but was part of the settlement, which involved adding mitigation measures.  This settlement occurred prior to a court decision.

(Here and here are a couple of less effective alternatives to litigation.)

 

NFS Litigation Weekly April 13, 2018

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Litigation Weekly April 13

Since there was no evidence that an access easement had been granted by the Helena-Lewis and Clark National Forest to a patented mining claim in-holding, the Forest Service could require a special use permit for the owners to use a road that was closed to public motorized use.  (D. Mont.)

(New case.)  Taking a cue from a 9th Circuit decision in 2013 on the Pilgrim Creek timber sale, which said that ineffective road closures would violate the Kootenai National Forest plan limits on open roads, plaintiffs identified numerous ineffective berms and open roads that had not been accounted for.  They have again challenged the Pilgrim Creek timber sale project for violating NFMA and NEPA, and also alleged violation of the incidental take provisions of ESA for grizzly bears for the project and the forest plan .  (D. Mont.)  This case was also mentioned here.

(Note:  Plaintiffs continue to refer to the “Access Amendment” to the previous forest plan, which was incorporated into the revised Kootenai forest plan in 2015.  While it may be true that the NFMA consistency requirement for this project is determined based on the old forest plan, if the court grants their request for reinitiation of consultation on access restrictions, that would mean reinitiating consultation on the revised forest plan.)

Huron-Manistee forest plan contributes to recovery of the Kirtland’s warbler

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The U. S. Fish and Wildlife Service has proposed removing the Kirtland’s warbler from the list of endangered species.  It inhabits young stands of jack pine in the Great Lakes region and was one of the first species listed in 1967 due to fire suppression and parasitic cowbirds.  More background from the FWS is here.

The 2006 Huron-Manistee forest plan includes many plan components designed to promote the species’ recovery.  One management area includes 7 areas identified as essential Kirtland’s warbler habitat or emphasis areas.  In these areas, among other things, the forest plan prohibits grazing, trail construction, and common variety minerals mining, and there are breeding season restrictions on recreation.

The forest plan also says:

A considerable portion of the dry sand outwash plains on the Huron National Forest in Management Area 4.2 will be managed as essential habitat for the Kirtland’s warbler… This prescription area contains approximately 45 percent of all National Forest System lands on the Huron-Manistee National Forests, which includes approximately 136,000 acres of Kirtland’s warbler emphasis areas.

Objectives:

Create approximately 1,600 acres of essential breeding habitat each year. Approximately 15,960 acres of essential breeding habitat will be available at any one time into the foreseeable future. This will enable the Forests to provide for a minimum of 420 pairs of Kirtland’s warblers.

Forest-wide standards and guidelines:

Habitat and population objectives are in accordance with the Kirtland’s Warbler Recovery Plan (USDI-Fish and Wildlife Service 1985) and Strategy for Kirtland’s Warbler Habitat Management (USDA-Forest Service 2001)

Management area standards and guidelines:

  • Develop Kirtland’s warbler breeding habitat by designing and configuring treatment blocks that mimic the regeneration effects of wildfire.
  • Prepare treatment blocks for regeneration by clearcutting.
  • Treatment blocks will be no greater than 550 acres unless reviewed by the Regional Forester.
  • Provide 15 to 25 snags per acre in treatment blocks.

By specifically incorporating science-based conservation and recovery strategies into the forest plan, the plan has guided the projects that have promoted recovery, and has limited activities with adverse effects.  The forest plan may also serve as a regulatory mechanism that the FWS can cite supporting its future outlook for the species.  This is a good example of what the 2012 Planning Rule directs forest plans to do.  (It’s too bad that Forest Service is less enthusiastic about including conservation strategies that restrict timber harvest.)