Jon Haber

WA murrelet strategy should “meet only minimum federal standards for protections”

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At least that’s what the Washington state politicians are urging their Department of Natural Resources to adopt for its lands.

The DNR is currently considering five different proposals to protect the bird species. A final decision is expected within the next few weeks. Walsh has come out in favor of “alternative B” which he says would meet minimum federal standards for species preservation while ensuring the least amount of negative impact on local economies.

A press release noted that Walsh, and his peers who signed off on the letter to the DNR, believe that reduced timber sales in coastal communities would “create significant economic hardship on counties and communities that can least afford it.”

In other words, let’s manage this species so it stays on the edge of extinction.  This is why we have endangered species (and a federal Endangered Species Act).

Litigation Weekly Nov. 3

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Litigation Weekly Nov 3

Annual operating instructions for four grazing allotments on the Salmon-Challis NF complied with the INFISH aquatic strategy in the forest plan.  (D. Idaho)

New case

The NOI questions compliance by the Sawtooth NF with conditions from previous ESA consultation on livestock grazing in the Williams Creek allotment regarding effects on listed fish species.

Litigation weekly Oct. 27

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(nothing received for Oct. 20)

Litigation Weekly Oct 27

The district court upheld the Kootenai and Idaho Panhandle NF 2015 revised forest plans with regard to management of recommended wilderness areas, but the Kootenai planning process failed to provide for adequate public comments on recommendations to designate two river segments (D. Mont.) Also discussed here.

New cases

A preservation group and two ranches challenge the Modoc NF’s failure to remove excess wild horses as required by the Wild Free Roaming Horses and Burros Act and a territory management plan (E.D. Cal.).

This case concerns the Moose Creek Vegetation Project on the Helena-Lewis and Clark NF and the Healthy Forest Restoration Act Montana designations (D. Mont).

 

Plan for logging in Daniel Boone National Forest threatens rare flowers

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This is about a formal objection to a logging project.  I think it illustrates one of the major issues we see in a lot of conflicts about logging (and an eastern example to boot):  what role should timber sale economics play in project selection and decision-making?

From the objectors:

Instead of focusing restoration efforts where they’re most needed, the Forest Service is going where the timber is,” Scheff said.  Scheff said there is a genuine need for appropriate measures to improve the health of the area, which is home to unusual or rare features including sandstone glades, Appalachian seeps and spots of native grassland. But the Forest Service could use methods other than commercial logging at many sites to achieve the goals of the project, Scheff said.

From the Forest Service:

The Forest Service said logging as part of the Greenwood project would help the local economy.  Reed said commercial logging is a tool to help improve the national forest, bringing in money for work the Forest Service would otherwise have to pay to get done.  “It’s an efficiency and it’s common sense,” Reed said.

I at least hope the NEPA process clearly laid out the differences in effects between these alternatives, and the reasons for the choices made.

Case on forest plan wilderness recommendations

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Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

Colloquium on national monuments

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To Shrink or Not to Shrink?
Presidential Authority Over National Monuments
Monday, November 20, 2017
University of Denver Sturm College of Law, Room 165
6:30pm – 8:30pm

This year’s Carver Colloquium will debate the ability of standing presidents to diminish or abolish national monuments created by past presidents. The authority to expand national monuments has always been included in the Antiquities Act, but recent controversy has questioned the legal authority for presidents to shrink the size of some monuments.

(Free!)

http://www.law.du.edu/index.php/rmlui/rmlui-academic/carver-colloquium

 

Another September case

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Wild Wilderness v. Allen seems to have not shown up on the Forest Service litigation reports, but here is a newspaper version.  On Sept. 8, the Ninth Circuit found that the decision to build the Kapka Sno-Park, a parking lot for snowmobile users on the Deschutes National Forest, was consistent with the forest plan and did not require an EIS.  I found a couple of points interesting.

One was the court’s treatment of forest plan “standards and guidelines” that were prefaced with language indicating discretion.  The court said, “But nothing in this provision mandates closure of any area to motorized use. It merely outlines steps that “will generally be taken” in the event of user conflicts. The Forest Plan outlines “an aspiration, not an obligation” and therefore “there is no law for us to apply in second-guessing the agency.””  It similarly dismissed language from the Recreation Opportunity Spectrum as “nonbinding guidance.” Note to the public participating in forest planning – if the plan doesn’t say “must” or “shall” the Forest Service won’t have to.  (Recreation, unlike wildlife, doesn’t have any substantive requirements that a plan must meet using mandatory language.)

On the NEPA side, the court held that the forest didn’t have to explain why it changed from an EIS to an EA, as long as it justified the EA.  It rejected the comparison “to cases in which agencies failed to provide reasoned explanations for changes in their position on matters of policy or factual findings.”  The court stated, “The Forest Service here, however, never changed its mind on any factual or policy matter but only on how it planned to comply with its own procedural requirements. There was no agency decision to reverse, as a draft EIS is not an agency decision at all.”  An EIS is not a decision, but this holding only makes sense to me if an EIS also does not represent a finding that there are significant impacts, which is would be a “factual finding.”  In fact, an EIS may be prepared by an agency even if effects are not significant, so changing from an EIS to an EA doesn’t necessarily trigger an additional burden of explanation for the agency.

Sage grouse planning do-over

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This article discusses the last Trump/Zinke twist in the effort to prevent sage listing of the greater sage grouse under ESA.  While sage grouse habitat on federal lands is mostly under BLM jurisdiction, the Forest Service is also a big player, and 20 forest plans were amended in 2015 to include conservation measures that were relied on by the Fish and Wildlife Service in its decision to not list the sage grouse.  Many of the laws and principles in play here also apply to other at-risk species on national forests.  Here are is one principle from Republican Wyoming Governor Matt Mead that I think is especially relevant right now:

“We can’t have wholesale changes in wildlife management every four or eight years. I don’t think that is the best way to sustain populations or provide the necessary predictability to industry and business in our states.”

And then there’s this:

The oil and gas industry group Western Energy Alliance has called for action following the federal review of the sage grouse plans. The group was not one of the key players in developing the plan in Wyoming, but has been vocal on the need for changes that support energy development.

(Where have we heard complaints about something like this before?)

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

A couple more fire articles – costs and solutions

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One is an Associated Press overview of the firefighting cost issue.  It’s not research, but it is the way the problem is viewed by many people.  Here is why they say costs are going up:

The U.S. is seeing more and bigger wildfires, and the wildfire season is getting longer. The reasons are hotter, drier weather and a buildup of dead and dying trees because of past fire-suppression practices, said Jennifer Jones, a spokeswoman for the National Interagency Fire Center, which coordinates firefighting nationwide.

The old practice of putting out all fires led to overgrown forests, some with huge tracts of trees that died at about the same time, leaving them prone to large, hot, fast-moving blazes, researchers say.

Some climate and forestry experts say global warming is a factor in the increasing number of fires because it’s contributing to the hot, dry weather.

Jones said another development driving up costs is the increasing number of homes being built in or near forests, a number that the Forest Service estimates is about 43 million homes. Keeping fires away from people, houses, power lines and other infrastructure is more complicated and costly than firefighting in the wilds.

I noticed the absence of “not enough thinning” or “serial litigants.”  Although there’s allusions to both in the last paragraph on legislative solutions (even though they’re not described as a cause):

But one also calls on the Forest Service to manage its woodlands more actively, including thinning dense stands of trees and removing dead trees in an effort to reduce fires. Some argue that pushing management practices is unnecessary and ineffective.

The other features Stephen Pyne discussing what “let it burn” means today in Arizona.  The title:  “Nature is clearing more forest than people can. That may be a good thing.”

It’s complicated, but the gist is this: When lightning-caused fires do not threaten homes, let them burn. That’s an overgeneralization for an approach that takes many factors into consideration such as burn scares from previous fires, weather, drought, fuel, resources, firefighter safety and nearby communities.

Firefighters are frequently “going to managed wildfire, or a box and burn strategy,” Pyne said. Roads, trails and other barriers serve as fire lines. Those lines are the box. The burn clears brush within them. Each box cleared is less likely to be part of a giant fire in the future.

“You’re not just walking away and letting it go,” Pyne said.  The strategy is not new — it has quietly been going on for years, said Zabinski.  “It’s happening quietly all around, but more so the last few years,” she said, because the recent years have brought some drought relief.

The strategy is not without risks because “nature’s complicated. People make mistakes. Things happen,” Pyne said. But without it, “we’ll be playing Whac-A-Mole into the indefinite future. And we’re not going to win.”