Jon Haber

NFS Litigation Weekly – March 9, 2018

by

Litigation Weekly March 9

After a remand to correct NEPA deficiencies, the court upheld the Smokey Project on the Mendocino National Forest and dissolved the prior injunction against removing trees 2o” in diameter or greater.  (E.D. Cal.)  The prior decision in this case was addressed here.  (See below for more details.)

After two remands to address lynx and grizzly bear issues with biological opinions, the Ninth Circuit upheld the Gallatin National Forest decision on the Lonesome Wood 2 project to reduce the threat of wildfire, and dissolved the prior injunction.  (D. Mont.)  (See below for more details.)

(Update.)  The Ninth Circuit denied the government’s request to dismiss a case filed by twenty-one young plaintiffs against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.  (9th Cir.)

(New case.)  Plaintiffs challenge the use of a categorical exclusion for the Spear Creek Roadside Hazard Tree Mitigation Project along 23 miles of road in the Giant Sequoia National Monument.  (E.D. Cal.)  A related case involving the same issues on the same fire was discussed here.

Blogger’s comments on Conservation Congress v. USFS

This case addresses some of the scientific questions about northern spotted owls and fire that have been debated on this blog. There were two desired outcomes for the project area. One was to retain NSO foraging habitat, defined as at least 40% canopy cover. The other was to reduce the mortality from future fires under 97th percentile weather conditions to 25% (using the Forest Vegetation Simulator model). The proposed action, without diameter caps, was the only alternative where trees can be thinned evenly across all size class clumps: “the ability to remove some larger trees allows the Proposed Action to achieve reduction of canopy fuel hazard in the hard-to-replace larger size class clumps, and to retain canopy cover in the smaller size class clumps, both of which comprise the foraging habitat within the commercial thin units.”

Plaintiffs questioned the use of the 97th percentile because it differed from the 90th percentile used in the Forest’s “Late Successional Reserve Assessment.” The court found that the Forest had adequately explained its rationale: “the higher percentile accounts for climate change and the 97th percentile conditions were judged to approximate 90th percentile conditions over the life of the Project (20 years).”

The court also examined the basis for the requirement imposed by the Forest on the project that after treatment the potential mortality from future wildfire not exceed 25%. The “Late Successional Reserve Assessment” had stated that this limit on future mortality was necessary to “maintain late successional habitat.” The court agreed with the Forest Service interpretation that this did not need to include the effects of thinning, so the combined effect of thinning and future fires could therefore exceed 25%. The Assessment did not consider additional effects of thinning, so I think this is a case where the court gave the agency too much deference, and the Forest Service interpretation was arbitrary and capricious.

The court also identified a problem I have seen a few times – there are conflicting factual statements in the NEPA document and biological assessment and/or biological opinion. This required the Forest to retract and clarify statements as part of this remand.

Blogger’s comments on NEC v. Krueger

The court rejected the Forest Service position it characterized as “Forest Plan ‘goals’ are merely aspirational and thus impose no obligations on USFS,” citing other language in the plan that indicates the intent was more than “ a mere preference.”  This should have implications for the application of the 2012 Planning Rule, in which desired conditions are similarly “aspirational,” but also given significant weight through the Rule’s consistency requirement and elsewhere.   Nevertheless, the court held that, although it could imagine projects that would be incompatible with the goal, “the Council does not allege, and has offered no evidence to suggest, that Lonesome Wood 2 is such a project.”

The court examined a master’s thesis about lynx habitat requirements that had been produced after the lynx conservation strategy was amended into the forest plan, and which plaintiffs argued invalidated reliance on the provisions of the lynx amendment.  Regarding this new scientific information the court, held:

“In light of the deference that we owe to the agency’s expertise, and in light of FWS’s site-specific BiOp analyzing the effect of Lonesome Wood 2 on the Canada lynx, we disagree. We decline to overrule the Forest Service’s determination that Ms. Kosterman’s thesis does not require it to reevaluate its approval of the project.”

“Ms. Kosterman’s thesis will undoubtedly prove significant in the consultation process concerning the Lynx Amendments, including the WUI exemption, that has been reinitiated and is now underway pursuant to our decision in Cottonwood. Indeed, Regional Forester Marten acknowledged this in her letter when she wrote, “[W]e fully recognize the importance of [Ms. Kosterman’s] study and its implication for improved management direction.” If the Forest Service fails to give Ms. Kosterman’s thesis its due in the reinitiated consultation process, the Council will have an opportunity, in appropriate proceedings, to challenge that process and its result.”

Stay tuned.

BLM O&C plan changes may lead to ESA listing

by

One of the factors considered in listing a species under ESA is the adequacy of exiting regulatory mechanisms.  One of the biggest payoffs from national forest and BLM planning may be the adoption of such mandatory mechanisms that would protect a species and reduce or eliminate the need to list it under ESA.

The Northwest Forest Plan included a requirement to survey for rare species prior to logging projects – “Survey and Manage.” BLM amended its Northwestern and Coastal Oregon Resource Management Plan in August 2016 (see prior discussion on this blog here).  One significant change in the approach to managing at-risk species was eliminating the Survey and Manage requirement.  Here is the statement regarding this change from the BLM:

“The Proposed RMP, like the action alternatives, does not include the Survey and Manage measures of the No Action alternative. The Survey and Manage measures were included in the Northwest Forest Plan to respond to a goal of ensuring viable, well-distributed populations of all species associated with late-successional and old-growth forests. This goal of the Northwest Forest Plan was founded on a U.S. Forest Service organic statute and planning regulation, which did not and do not apply to the BLM, and is not a part of the purpose for this RMP revision. As detailed in the analysis in the Proposed RMP/Final EIS, the Proposed RMP will allocate a larger Late-Successional Reserve network than the No Action alternative, will protect older and more structurally-complex forests, and will continue to provide management for many of the formerly Survey and Manage species as Bureau Sensitive species. The Proposed RMP can achieve the purpose of this RMP revision and respond the BLM’s statutory authorities and mandates without the Survey and Manage measures.”

Here is a response:

Conservation groups Monday petitioned the government to list the rare Siskiyou Mountains salamander under the federal Endangered Species Act, claiming federal land managers’ apparent reneging on old “look before you log” provisions in potential future logging sales imperil the rare forest amphibian.

Since 2007, the BLM has been required to survey for rare species like the Siskiyou Mountains salamander and manage 110 high-priority sites for the benefits of salamanders and their habitats. This survey-and-management plan, was also known as the “look before you log” approach, generally includes logging buffers should sales move forward.

Conservation groups originally filed for Endangered Species Act protection for the salamander in 2004. The 2007 conservation agreement, as well as old-growth forest protections under the Northwest Forest Plan, were cited by the Fish and Wildlife Service when it denied Endangered Species Act protection for the salamander.

The Fish and Wildlife Service will now have to consider the effect of the changes in the BLM plan, and may decide that listing this species is warranted.  That could lead to further restrictions on logging.  Of course BLM could then blame someone else – for forcing it to recognize that protecting species and ecosystems is part of its mission.

 

Zinke wants a new national monument (in his home state)

by

In our recent discussions of downsizing national monuments, I don’t think this little sideshow has been mentioned.

As part of his review of national monuments across the United States, the Interior secretary did not recommend a reduction in the size of any in his home state of Montana. In fact, Zinke, who represented Montana in Congress prior to taking over as Interior secretary earlier this year, recommended that Trump create a new 130,000-acre national monument in the Badger-Two Medicine area of northwestern Montana.

Both Bears Ears and Badger-Two Medicine are of cultural significance to Native American tribes. But only one is in Zinke’s home state.

“Everything that Secretary Zinke does in Montana is 180 degrees from what he does to the rest of the country,” Center for Western Priorities spokesperson Aaron Weiss told ThinkProgress. “Montana gets special treatment because he would like to be governor there some day.”

Land Tawney, executive director of the Backcountry Hunters and Anglers, told the Missoulian newspaper. “As you’re attacking the seminal accomplishments of [President Theodore] Roosevelt and at same time talking about adding a monument, it didn’t make much sense,”

Another take from the National Parks Conservation Association (in the Missoulian article):  “If monuments aren’t permanent, we don’t want monument status.  If it’s so transitory and impermanent it can be undone by the stroke of a pen in some future administration, it’s not permanent protection.”

It’s not obvious that the resource development opportunities foregone are that different from Utah either.  (I was reminded of this situation because a lawsuit is pending regarding a disputed oil lease in the Badger-Two Medicine.)

Rural New Mexico for wilderness?

by

 

Grant County New Mexico ranchers have sued the Forest Service over grazing rights and the county commissioners are considering suing over a travel plan.  However, they have recently aimed their fire in another direction, at the Air Force, apparently to protect the Gila National Forest from planned overflights.

The Air Force is in the early stages — what lead airspace analyst Alan Shafer called “the end of the beginning” — of developing an environmental impact statement, as required by the National Environmental Policy Act, for three alternative areas in which to fly the F-16s. One of those alternatives is located over a vaguely defined swath of airspace over the Gila National Forest, near Grant County communities as well as over sections of the Gila and Aldo Wilderness areas.

When area residents discovered this alternative was being considered, hundreds quickly took up a call against the possibility. Shafer said so many Grant County residents commented, in fact, that their numbers overshadow those from anywhere else in the state — whether those commenters live near identified alternatives or not.

“We have, probably by a factor of ten, more comments from this area than any other,” Shafer told the large crowd on Thursday, which filled one of the ballrooms at the Grant County Veterans Memorial Business and Conference Center. “I understand what you’re saying and how important the Gila National Forest and wilderness area are to you.

It sounds like the Air Force was successful at getting a wide range of national forest interests to come together and fight a common enemy.  (Or maybe the “airspace analyst” just wasn’t very good at reading the crowd’s interests.)  Interestingly, there was nothing on the Gila National Forest website about it, including any indication of their role or whether they would take a position.

Bears lose to cows

by

Here is George Wuerthner’s take on livestock allotment planning on the Bridger-Teton National Forest.

The Upper Green Allotment is the largest Forest Service grazing allotment in the West. It is a mixture of aspen, rolling sagebrush/grassland, willow-lined creeks, intermixed with ponds, and springs.

It contains the best wildlife habitat outside of a national park. Home to grizzlies and wolves, endangered Colorado cutthroat trout, sage grouse, elk, moose, pronghorn, and various rare amphibians, among other outstanding wildlife values.

That is one reason why the BTNF Forest Plan has categorized 93% of the area as DFC 10 and 12 status where protecting wildlife values is the primary goal. Yet the FS manages it as more or less a feedlot for a few local ranchers.

Since 1995, 34 grizzly bears have been “removed” from the Upper Green River allotment. When I questioned why the public’s wildlife was being removed instead of private livestock using our public lands, I was shut down and told I wasn’t allowed to debate these issues.

According to the Forest Service,

The purpose of the project is to continue to authorize livestock grazing in a manner that will maintain
or improve resource conditions. The Bridger-Teton Land and Resource Management Plan … provides direction to support community prosperity in part through livestock grazing (Goal 1.1 and Objective 1.1(h),… in a manner that avoids unacceptable effects from livestock use on range, soils, water, wildlife, and recreation values or experiences …

The majority of the project area is in DFC 10 (approximately 66 percent). The area theme is an area managed “to allow for some resource development and roads while having no adverse, and some beneficial effects on wildlife.”  The management emphasis is to “[p]rovide long-term and short-term habitat to meet the needs of wildlife managed in balance with timber harvest, grazing, and minerals development.”

Grizzly bear management objective is to minimize the livestock related grizzly bear mortality.

All of the alternatives would permit more cattle to graze than has historically occurred (Table ES-2).  All of the alternatives would be likely to adversely affect grizzly bears, which also sounds like a conflict with the forest plan requiring management for no adverse effects.  Arguably, a “no grazing” alternative would not meet the purpose and need, but it looks to me like they haven’t considered a reasonable range of alternatives to reduce impacts on grizzly bears.

He’s got some interesting comments about the bias of range “cons” who “deferred to the ranchers:”  “I can also assure you that most range cons are “want to be” ranchers…”  My experience was that they were more likely to be “want to be” wildlife biologists.  In contrast my experience with foresters (other than myself) is that they like to manage forests, and “no-action” has never appealed to them much, maybe because “it would result in no reason for your position.”

Sue and settle … for a study

by

This lawsuit involves two predator-killing poisons.  It doesn’t directly involve the Forest Service, although the chemicals are used on national forests.  But it is a recent example of what a lot of settlements look like – more analysis.

The 10-page agreement filed Wednesday in U.S. District Court in Montana requires the U.S. Fish and Wildlife Service to complete consultations with the Environmental Protection Agency by the end of 2021 on the two poisons used by federal workers on rural Western lands to protect livestock.

The Center for Biological Diversity and the other groups in the lawsuit filed last year in Montana say Fish and Wildlife is violating the Endangered Species Act by not analyzing with the EPA how sodium cyanide and Compound 1080 could harm federally protected species including grizzly bears and Canada lynx.

“The federal government needs to ban these deadly pesticides, but until then we’re hopeful the analysis spurred by our lawsuit will lead to common-sense measures to prevent unintended deaths,” Collette Adkins with the Center for Biological Diversity said in a statement.

Evidently, in this case, the agencies can continue to use the chemicals while the study proceeds.

 

Is a subdivision surrounded by national forest “reasonable?”

by

 

 

 

 

ANILCA provides: “Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with the rules and regulations applicable to ingress and egress to or from the National Forest System.” 16 U.S.C. § 3210(a)

“The U.S. Forest Service is currently considering approval of a new two-lane paved road across public lands north of Edwards to facilitate development of Berlaimont Estates — 19 new mansions, 2,000 vertical feet above town. The sprawling subdivision would be developed on a parcel that is completely surrounded by National Forest.

Unlike other nearby neighborhoods (e.g., Wildridge and Mountain Star), public land managers must approve a new road across lands owned by you and me to facilitate this proposal. To approve the new road, the Forest Service must deem Berlaimont Estates a “reasonable” land use.”

How does the White River National Forest determine what is a reasonable use?  Dose it matter what the surrounding use of the national forest is?  Does it matter if it creates bigger WUI problems?  When you buy a piece of land surrounded by public lands with no access is it reasonable to expect to build a subdivision?

These questions are intertwined (and sometimes conflated) with the question of whether the “regulations applicable to ingress and egress” (access) are reasonable.  Should the Forest Service be able to say that the proposed “32-foot wide, bermed, walled, plowed and paved thoroughfare switchbacking thousands of feet up a very visible hillside,” where “the walls necessary to support this road could be more than 1,000 feet long and as tall as 40 feet” is not reasonable?  The Forest Service has been upheld when it limits the kind of access to inholdings.  And by the way, “The 2002 Forest Plan designated this area Deer and Elk Winter Range and restricted winter use to minimize disturbance.”  It seems like a road with lots of use on it might be inconsistent with the forest plan.

It’s probably unfortunate that the local land use plan either allows a subdivision here or there isn’t any local planning.  It is Forest Service policy to get involved with that process, in part to help it deal with these hard questions.

Extinction on the national forests

by

Larry Harrell asked recently (with a *smirk* no doubt) if any species have gone extinct on national forests.  Here’s a report (published in 2004) from the Center for Biological Diversity that documents 108 extinctions that occurred between the passage of the Endangered Species Act in 1973 and 1995.  Two are noted on national forests.  One was a mussel on the Carson National Forest.  Here’s the other:

The San Gabriel Mountains Blue butterfly (Plebejus saepiolus aureolus) was known only from a single wet meadow within the yellow pine forest near the Big Pines Ranger Station, San Gabriel Mountains, Angeles National Forest, California [14]. Its host plant was Trifolium wormskioldii. At a minimum it was seen in 1970, 1980, and 1985. It has not been seen since 1985 [14]. It was not found in a 1995 survey which was a very wet year that would have encouraged reproduction if the taxon still existed [97]. The meadow was still wet, but had been made smaller due to the diversion of some of the water from the natural spring feeding it. The diversion of the spring by the U.S. Forest Service has been suggested as the cause of the species extinction [189].

And it’s been another 20 years since then.  Another species that seems obvious, but its extinction probably pre-dates this study is the ivory-billed woodpecker, which ranged throughout the southeastern forests, and was killed off by logging. The Ocala National Forest in Florida was established in 1908, but ivory bills had apparently disappeared from there by 1940.  The last confirmed sighting was in 1944 in Louisiana.  One of the unconfirmed sightings after that was on the DeSoto National Forest in Mississippi.

It would be good to see more like this:

One rare desert plant has been removed from the endangered species list, and another has been “down-listed,” thanks to successful recovery efforts in Death Valley National Park.

National forest planning has been a contributing factor to the delisting of grizzly bears in the Yellowstone ecosystem, and will be part of the consideration if Canada lynx are proposed for delisting.

Getting recreational shooting off of national forests

by

That’s at least part of the solution in the Arapaho-Roosevelt National Forest’s proposal to amend its forest plan to provide “new rules to govern recreational shooting on national forest land.”  The effort is being managed by the Northern Front Range Recreational Sport Shooting Management Partnership, a collaborative effort started in 2013 that also includes Colorado Parks and Wildlife and four counties.

The purpose, from the partnership website:

to develop possible management strategies for this activity on the Arapaho and Roosevelt National Forests. This includes not only identifying areas of the Forests that may or may not be suitable for recreational sport shooting, but also identifying locations that would be conducive to building developed shooting ranges open to the public on public lands.

Proposed closures would not apply to lawful hunting activities on National Forest System lands. In addition, proposed closures would likely not take effect until developed shooting ranges were constructed in the vicinity.

The forest supervisor said the partnership’s approach to the safety concerns is to have the counties build shooting ranges to give people more controlled places to shoot, in exchange for closures of Forest Service land.   One of the alternatives being considered is 100% closure of national forest lands.  One member of the public opined that it must be a joke, but I think it’s fair to consider whether recreational shooting is compatible with other uses of a national forest.  At least outside of areas designated for that use (and maybe areas designated for that use should be under a special use permit like other exclusive uses).

Previously discussed on this blog here.

Wyoming Public Lands Initiative and the Bridger-Teton National Forest

by

“In early 2016 the Wyoming County Commissioners Association (WCCA) organized the Wyoming Public Lands Initiative (WPLI).  The WPLI is a collaborative, county-led process intended to designate WSAs as wilderness, multiple use, or other management.  The result will be one state-wide legislative lands package that is broadly supported by public lands stakeholders in Wyoming.”

It always makes me a little nervous when a local “collaborative” (or local government) feels empowered to dictate federal land policies (especially where, as in this case, there is a county plan that purports to “guide … the management of public lands” – implicitly federal lands).  On the other hand, it’s always helpful to land managers if those with opposing views can work out and recommend something they all agree on.   With wilderness designation decisions there is the added layer of Congress having to take a national look before approving a decision.  In this case there are also national conservation groups represented in the collaborative, as well as local ones.  But there is also a lawsuit by other conservation groups, and apparently someone on the other side ran to the local Congresswoman who is meddling, so the county commissioners are asking for a “time-out.”  Here’s the latest.