Jon Haber

Some red meat for the anti-litigation crowd

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Here’s a story about an enjoined timber sale that might be burning up right now.  It will no doubt become Exhibit A for arguing why we should not allow the public to sue the government over its land management decisions.

“Both the Park Creek and Arrastra Fires on the Helena-Lewis and Clark National Forest were ignited by lightning storms that spread through dense stands of dead timber. And both are located within the area of the Forest Service’s proposed Stonewall Vegetation Project, which was halted when two environmental litigant groups successfully convinced a federal judge to issue a preliminary injunction to halt the project.”

I just have to question the conclusions:  “The preliminary injunction against the Stonewall project, and the resulting fires …”  and the idea that environmental litigants should be “held accountable for their actions.” First there is the question of what exactly their actions caused (the fires?), and second is the idea that there should be liability associated with winning a lawsuit.  I think the judge allocated accountability in this case to the Forest Service for failing to follow the law.  They could have reconsulted on lynx critical habitat long ago, and the court said they should have, and if they had, the project would have probably occurred on schedule.

 

Court: “There is no ‘oops’ exception to the duty of federal agencies to engage in reasoned decision making”

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This case about wild horses on national forests shows how courts tend to look at agencies changing their minds (for whatever reason).  “The judges said decades of history and practice by the Forest Service can’t be swept away by calling the original decision a mistake.”  There is a process for remaking decisions – even “mistakes.”  (I think I don’t agree with the author’s summary at the end – a mistake IS the same thing as a decision.)

Utah counties make plans for federal lands

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Sagebrush Rebellion light?

The state required counties to make these plans, which by itself should be a good thing (especially where there has historically been anti-planning sentiment). “This helps us to work with our federal partners to ensure Summit County’s interests are part of the conversation on how federal lands are managed,” said Sean Lewis, a Summit County planner and project manager for the drafting of the plan.  “This provides a template for us to work together with our Forest Service managers,” (Summit County Council member) Carson said. “We want to be partners with them. We don’t want to take stuff over from them and I am confident we will have a lot in common.”  This makes sense.

However, Summit County is a recreational drive from Utah’s urban centers, and we should expect other more isolated counties, with encouragement from anti-federalists, to want to use these plans to impose local control when federal land planning occurs there.  The article refers to the BLM requirement for a “consistency review” of local plans, but the 10th Circuit (New Mexico ex rel. Richardson v. BLM) held that, “A meaningful opportunity to comment is all the regulation requires.”  Nevada was similarly unsuccessful in using this provision to challenge federal planning for sage grouse (Western Exploration v. USDI).

The Forest Service Planning Rule also has requirements to “coordinate” national forest planning with local planning, which some would like to view as a consistency requirement.  But the Planning Rule also says, “The Forest Service retains decisionmaking authority and responsibility for all decisions throughout the process.”  The bottom line is that states have no authority over federal land management.

Another kind of access challenge

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Sometimes the threat to national forest access results from undeveloped private land adjacent to a national forest becoming a subdivision, and here’s an example of that.

In a recent development (described on a subscription-only site) an Aug. 28 hearing has been set in a lawsuit filed by developer Easter Mountain Ranch LLC (EMR) against Cochise County, Arizona.  The county board had denied approval of a tentative subdivision plat for J6 Ranch, a 278-home gated community planned for the northern foothills of the Whetstone Mountains.  The land to be subdivided abuts the Coronado National Forest.  The issue in the case boils down to a requirement by the county for the developer to “provide multi-purpose (vehicle, pedestrian, equestrian, etc.) legal access to federal lands.”  The proposed subdivision would provide a road that dead-ends at the boundary of the national forest where roads are not allowed.

While the lawsuit about whether the developer met this requirement may hinge on the meaning of “access to,” the question I have is what is the Forest Service position and what has their involvement been.  They are not mentioned here.  It seems likely that the county position was an effort to coordinate with the Forest Service, and what exactly that meant should have been on the table for all parties to understand.  But where was the Forest Service?  (There’s nothing on the EMR or J6 Ranch on the Coronado website.)

Then I wonder about what kind of public access will be allowed through a “gated community.”

Personnel, politics and public access to public lands

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Yes, it looks like Forest Service employees should be concerned about how Trump might affect their careers.  Here’s an example about offending private landowners who block access to national forests.  (And, without any facts beyond earlier stories, I’ll suggest that you not think of these as long-term rural residents, but more likely some recent, possibly seasonal transplants, with money and political connections.)

Here’s one version of the story from a private property rights promoter:

Such cooperation, however, changed under the Obama administration as the Forest Service took a more strident approach in asserting claims to “traditional public access” routes. The dramatic change is reflected in a posting by Yellowstone District Ranger Alex Sienkiewicz who publicly advocated “NEVER ask permission to access the National Forest Service through a traditional route shown on our maps EVEN if that route crosses private land. NEVER ASK PERMISSION; NEVER SIGN IN. … By asking permission, one undermines public access rights and plays into their lawyers’ trap of establishing a history of permissive access.”

According to Sienkiewicz and access advocates, traditional public access is sufficient to establish a legal right, known as a prescriptive easement, to cross private property. Centuries of legal practice, however, have required that individuals or agencies wanting to establish prescriptive easements must prove that access was continuous, open, notorious, and hostile to the owner. In other words, the access must be without expressed permission by the landowner, a burden of proof that has been difficult, to say the least.

This doesn’t sound like the complete story.  The federal government does try to protect its existing legal interests, and that includes historic access that may not have been formalized, which it tries to negotiate.  I doubt if it often pursues litigation, but does sometimes end up in court to defend public access, as in this case involving access to the Lee Metcalf Wilderness on the Indian Creek trail, cited by the author of the op-ed above as a good example of negotiation (at least until it apparently went bad).  The Forest Service met its “difficult” burden of proof in this case.  There is a risk that asking permission now could undo the historic rights that already exist, but I don’t think it’s large, and I am a little skeptical that the Forest Service would “post” statements like that above except in cases where a particular landowner had made it clear that they were declaring war on public access, such as in this example.

Here’s another version of the same story from a recreation outfitter:

Recently, the U.S. Forest Service removed District Ranger Alex Sienkiewicz from his position in the Yellowstone Ranger District pending an internal investigation into his efforts to defend historical Forest Service trails and easements along the Crazy Mountains.

When legal access to public land does exist, I believe Montanans fully expect the Forest Service to defend and maintain that access for Montanans. As with so many of these issues involving political pressure on public agencies, a look behind the curtain reveals a very troubling story. According to media reports, U.S. Sen. Steve Daines, and Congressman Pete Sessions from Houston, Texas, both contacted Agricultural Secretary Sonny Perdue regarding Sienkiewicz’s efforts to protect legal, established accesses to landlocked public lands. According to Mary Erickson, forest supervisor, “the reassignment was made after allegations from an assortment of landowners in the Big Timber area were raised to the level of the Secretary of Agriculture, Sonny Perdue, and Sen. Steve Daines.“

Here’s the background on the Crazy Mountains access.

Blocking and posting no trespassing signs at the head of Trail 115/136 prompted Yellowstone District ranger Alex Sienkiewicz to organize a trail clearing and marking trip this past summer. Prior to that the agency traded letters with the Langhuses’ Livingston attorney, Joe Swindlehurst, who has denied there is an old forest trail at that location.

It’s not a stretch to see this as politicians ordering a personnel move to keep public lands from public hands.  Dangerous on both counts.

 

 

Enjoined timber sale “renegotiated”

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The Johnson Bar Salvage Sale on the Nez Perce-Clearwater National Forest has been approved by the Forest Service and the litigants.  (Johnson Bar has been previously discussed here in several posts.)

Following the injunction, Nez Perce-Clearwater National Forest Supervisor Cheryl Probert pulled the project and committed to a rewrite that was completed earlier this year. The environmental groups filed objections to the new logging plan, but those objections were resolved through negotiations between the agency, the environmental groups and timber companies.

“Nobody got 100 percent of what they wanted in this effort. But they have been really good about working through the process and understanding it’s in all of our best interests to get something done out there,” Probert said.

Bill Higgins of the Idaho Forest Group — one of the timber companies that successfully bid on the sale — estimated it will produce 25 percent to 40 percent of the original volume

“It’s not the best outcome,” he said. “The original project implementation on the schedule they were on was the desired outcome. This is making the best of kind of a bad situation.”

The project eliminates logging in areas that are visible from the river and places the groups feared were prone to erosion and landslides or areas that could degrade steelhead spawning habitat.

What’s not to like about this?  Maybe only that they could have done this without the litigation step, but apparently the litigation step was needed to convince the Forest Service that it couldn’t just do what it wanted without a fight.  (Anticipating Sharon’s argument, let’s assume that the timber purchasers and local governments were not formally “at the table,” but they were free to advise the Forest Service on what they wanted.)

This is how we “love wilderness to death?”

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I couldn’t ignore these two stories showing up the same day (but I didn’t look for a photo).

Deschutes and Willamette National Forests (OR) proposes limiting wilderness users:  “Wilderness rangers reported coming across unburied human feces more than 1,000 times.”

White River National Forest (CO) proposes limiting overnight camping in wilderness:  “During the 2016 summer season, Jerman added, Wilderness Rangers encountered 273 incidences of unburied human waste in the Maroon Bells-Snowmass Wilderness.”

Not my area of expertise, but does raise some management policy questions.  Maybe the permit should require completion of some training.

Forest “Christmas tree” bill out of House committee

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No, not that Christmas tree (they are searching the Kootenai National Forest for that one).

 

This one.  This is the Westerman bill that the House hung all the hopes of active forest management on:  “the Resilient Federal Forests Act of 2017.”  Similar legislation in 2015 passed the House, but died in the Senate.

“To expedite under the National Environmental Policy Act of 1969 and improve forest management activities on National Forest System Lands, on public lands under the jurisdiction of the Bureau of Land Management, and on tribal lands to return resilience to overgrown, fire-prone forest lands and other purposes.”

Just about everything that has been suggested before (and stopped by Obamacrats) is in there to make it easier and attractive to do things.  Categorical exclusions, expedited salvage, expedited project ESA consultation and reduced/eliminated forest plan consultation, litigation restrictions, county payments, less road decommissioning, elimination of eastern OR/WA old growth harvest restrictions, elimination of Northwest Forest Plan survey and manage requirements, O & C land management changes, wildfire disaster funding.

 

 

 

 

 

 

Planning for pipelines – not

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A Draft Record of Decision document released by the United States Forest Service would allow 11 exceptions to the Jefferson National Forest Plan and adopt an amendment that allows old growth forests, rare species and wetlands to be destroyed by the proposed Mountain Valley Pipeline.

The Draft Record of Decision (ROD)  states that “the proposed plan amendment is needed…because the MVP Project cannot meet several Forest Plan Standards…to protect soil, water, riparian, old growth, recreational and visual resources.” (ROD, pg. 4)

The ROD refers to Executive Order 13766 recently issued by President Trump that directs the USFS to “expedite, in a manner consistent with the law, environmental reviews and approvals for all infrastructure projects that are a high priority for the Nation, such as …pipelines.”

Time for the energy development battles to move to court?   This article mentions two potential litigation risks.  The Forest did not consider any pipeline alternatives that would be consistent with the forest plan.  It also adopts plan amendments that were not included in the DEIS (arguably these are new decisions that were never scoped).  It could also test the amendment procedures under the 2012 Planning Rule.

“Political” personnel moves afoot at BLM?

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“Sources” say three BLM state directors are being moved:

“Alaska, Colorado and New Mexico have all been involved in controversial energy development and natural resource issues in the past few years, and sources say Interior brass do not view the three state directors at issue as being compatible with the Trump administration’s stated push to promote more oil and gas development and mining activity on federal lands.”

Should anyone in the Forest Service be concerned?