Jon Haber

Early seral wildlife species driving forest planning debate in the southeast

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Here’s an in-depth article on the ongoing revision of the plan for the Nantahala-Pisgah National Forest in North Carolina, featuring the extent to which the Forest should provide early seral habitat (ESH).

Many conservation advocates disagree over whether promoting this specific sort of habitat over others is desirable on a large scale. They also question whether aggressive advocacy for ESH stems more from a desire to conserve species or to boost game numbers and accessibility for the benefit of sportsmen.  

Fish and Wildlife Conservation Council:

The FWCC is a proponent of expanding active wildlife habitat management and restoration through, among other things, more timber harvesting and controlled fires. Central to their advocacy is forest restoration and increasing the amount of early successional habitat across the landscape, including grasses, shrubs and trees that provide food, cover and habitat for wildlife.  The FWCC believes that the future management of the National Forest should target a minimum of 12 percent of forest in an age class of 0-12 years. The need to improve game populations is a central argument of the FWCC and has been cited as a reason to oppose new additions to the wilderness base in several county resolutions.

The Nature Conservancy:

Warwick of TNC said that historically speaking there’s strong evidence that there was a much greater distribution of young forest and more grassy areas across the landscape prior to the 20th century. However, fire suppression has been a primary factor in abetting forest growth that is now lacking in young forest age classes and creating a canopy that is too dense. “Most of the species that are declining in the Southern Appalachian require ESH somewhere in their life cycle,” he said. “If we decide it is important to stem their decline, then there’s no (other) choice than to take an active management role. That means more fire and timber harvesting.”

Southern Environmental Law Center:

Sam Evans, an attorney with the Southern Environmental Law Center and member of the stakeholders forum agrees that ESH is underrepresented in the forest, especially if you look at those tracts in isolation.  Nobody who is actively participating in stakeholder discussions is objecting to increasing habitat diversity, including an increase in harvest for ESH,” said Evans in an email written to CPP. He said that the organizations he works with are “wildlife advocates.” “The truth is, I and other conservation voices are supporting precisely the same goal—restoration of ecological integrity in order to provide needed habitat for all the forest’s native species,” Evans said.

To borrow from the forestry professionals, “ecological integrity is the answer.”  According to the interpretation of NFMA in the 2012 Planning Regulations any way.  What’s muddied the waters in NC is the idea that wilderness designation is somehow contrary to ecological integrity (it limits tools, but the desired outcome is the same).  Not mentioned in the article are which species are or will be vulnerable because of a lack of ESH (this isn’t what the TNC quote said), and it doesn’t really address how the current and expected conditions of private lands should be accounted for.  It does point out that old-growth stands are also underrepresented on the Forest.

9th Circuit takes out NFMA diversity requirement

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In a 2-1 decision, which allowed the Big Thorne timber project to proceed on the Tongass National Forest, the Ninth Circuit Court of Appeals affirmed a district court opinion that the Forest Service had complied with NFMA when it adopted forest plan direction related to managing old growth forest for deer to support viability of Alexander Archipelago wolves (an at-risk species).  The dissent pointed out that prior Ninth Circuit precedent had established that:

the forest plan must comply with substantive requirements of the [NFMA] designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961–62 (9th Cir. 2002). Specifically, 36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” Our law is clear that an agency must abide by its own regulations.

The majority (both judges appointed by republican presidents) charted a new course, citing a a BLM case that had nothing to do with NFMA:

Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007).

Instead of recognizing the language of NFMA that requires plans to “provide for plant and animal diversity,” the majority opinion cites language that refers to the Multiple-Use Sustained-Yield Act (contained in a case that was not about forest plans).  It concludes:

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993–94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs.

In other words, NFMA did not take away any of the discretion provided by MUSYA.  This should be news to a lot of people, including the Forest Service.  This case would be a really good candidate for en banc review by the Ninth Circuit.

Here’s a local news story.

Whitebark pine still waiting on ESA

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Whitebark pine are being killed by a disease, white pine blister rust, as well an insect, the mountain pine beetle, according to the Fish and Wildlife Service.

Meanwhile, other species of trees have crowded out whitebark pine due to fire suppression efforts over the past century, the agency said.

The Wildwest Institute and the Alliance for the Wild Rockies couldn’t convince the 9th Circuit Court of Appeals that whitebark pine should be a priority for protection under the Endangered Species Act.  The Fish and Wildlife Service found whitebark pine to be warranted for listing but precluded by higher priorities.  The priority system the agency uses for considering additional species made whitebark pine a priority for listing, but the court held that the Service doesn’t have to follow its own priorities.  Whitebark pine remains a candidate species.

A conservation plan puts science ahead of politics

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This story about the Pima County Arizona conservation planning effort isn’t directly about national forests, though there should have been (and probably was) coordination with the Coronado National Forest.  And my point here isn’t about the success of a conservation plan driven by the need to protect at-risk species (arguably an ESA success story).  It’s about the role of scientists in the process (Sharon).

“County leaders stated from the outset that their primary goal was to conserve biological diversity through a scientifically defendable process, not to come up with a plan that everybody could agree on,” wrote the late urban planning specialist Judith Layzer in her 2008 book Natural Experiments, which analyzed more than a half-dozen regional land-conservation efforts.

The scientists and county staff discussed the plan in public sessions, but county officials made it clear that their work would not be derailed by complaints from developers and other critics. The scientists established standards for identifying biologically valuable lands and used computer models, observation records and the judgment of local naturalists and recognized experts to come up with a biological preserve map.

In contrast, in other multi-species plans, scientists, politicians, agency staffers, developers and moderate conservationists collectively determined which lands to save, thus bringing political and economic considerations into the science.

Looking back this spring, Huckelberry, a former county transportation chief, says he was simply applying the best practices from his previous job, highway planning, to land conservation. Typically, both a technical committee and a citizens’ committee review big road projects, he says: “The whole purpose of a technical advisory committee is not to play with the numbers, not to slant the analysis. We felt the political side could potentially be used to manipulate the scientific side, and felt that would bias the entire process.”

After the science team created a map of the proposed preserve system, a separate steering committee of 84 people, including developers, environmentalists and neighborhood leaders, haggled over its details. By then, though, the plan’s broad vision was already solidly in place.

Bringing this back to the Forest Service, this is similar to how a team of biologists developed the Lynx Conservation Assessment and Strategy, which was then followed by forest plan amendments that “haggled over the details.”  The Forest Service doesn’t like some of things it can’t do, but there haven’t been challenges to the science.  The grizzly bear conservation strategies seem to be more like the alternative process, where what the land managers want is infused into the discussions of the science.  (The Yellowstone strategy was already voided by a court once because of scientific issues.)

Are Trump’s climate censors at the door of forest planning?

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In conjunction with publishing its notice of intent to prepare an EIS and draft forest plan, the Gila National Forest revealed a bit of the thinking going on on at least one national forest about whether they should continue to address climate change in the forest planning process.

Throughout the assessment process, the Forest team took a close look at the significant effects of climate change on the Gila. According to Schulz, directives from U.S. President Donald Trump to other agencies to release no evidence of climate change they find have not been represented in the assessment report.

“The documents still do talk about climate change,” he said. “You will see that. We will just see how this all works moving forward. There are a lot of aspects we will still be talking about using some aspects of terminology, like ‘drought.’ There is clearly strong local interest in managing the effects of climate change.”

So maybe they would address climate change without saying the words?  At least they’re moving forward, for now.  It’s actually hard to imagine major backsliding in forest planning since the planning rule requires the use of the best available scientific information, and I think the Forest Service has been a leader in trying to apply climate change science.  The point about local interest is important, too.  If nothing else, if someone brings it up, the agency can’t arbitrarily dismiss it.

Summary of fire debate points

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The latest from Headwaters lays out their point of view on several topics that have been discussed a lot on this blog (with cites).  The 2016 paper is posted in full and is pretty short and sweet.  The key points:

1. Fire size and frequency will increase under a warmer and drier climate

2. Fuel reduction on federal lands will do little to reduce acreage burned and homes lost

3. Not all forests need restoration

4. High severity fires often have ecological benefits

5. Insect outbreaks do not necessarily make fires worse

6. Land-use planning can reduce wildfire risk

7. Managing more fires to burn safely can reduce risk and increase ecological benefit

Case closed?

Forest Service and BLM slightly lose sage grouse lawsuit in Nevada

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The state of Nevada, nine counties, three mining companies, and a private ranch challenged the adoption of greater sage grouse conservation measures in Forest Service and BLM land management plans.  Most of the agency actions were upheld in Western Exploration v. USDI (D. Nevada), including compliance with FLPMA requirements of BLM for multiple use and consistency “to the extent practical” with local plans, and compliance with NFMA.  Here’s the court’s language on Forest Service multiple-use:

“Plaintiffs contend that the SFA (mineral) withdrawal zones, travel restrictions on 16 million acres of land, and grazing restrictions violate the multiple-use mandate of NFMA. They also challenge that the FEIS violates multiple-use principles because it closes millions of acres of land to important uses, replaces “no unmitigated loss” with a requirement for “net conservation gain,” and creates uniform lek buffers that are “no-go zones.”

“The Court’s review of whether the Forest Service Plan violates NFMA’s multiple use mandate is necessarily narrow, and it may consider only whether the Forest Service contemplated all relevant factors in making its determination. First, it is unclear to the Court how travel and grazing restrictions manifest the Forest Service’s failure to consider multiple use. To the contrary, the restrictions demonstrate a balance between conservation of greater-sage grouse habitat and sustainable human use of natural resources. Second, the Court fails to see how multiple use mandates that any particular parcel of land be available for any particular use.  While Plaintiffs point out certain land closures in the USFS Plan, such as complete exclusion of new solar and wind energy projects (on SFA, PHMA, and GHMA), the Plan does not exclude all possible human uses on those lands. Finally, Plaintiffs fail to demonstrate how the “net conservation gain” and lek buffer zones preclude multiple use or demonstrate a failure on the part of the Forest Service to consider all relevant factors. In fact, the move from “no unmitigated loss” in the DEIS to “net conservation gain” in the FEIS demonstrates that the Forest Service reconsidered whether their initial standard consistently balanced sustainable human use with adequate habitat conservation.”

The court did not uphold compliance with NEPA. Plaintiffs had identified several changes between the draft and final EIS, and the court agreed that, “the designation of 2.8 million acres as Focal Areas in Nevada amounts to a substantial change relevant to environmental concerns, requiring the Agencies to prepare an SEIS.  The court focused on the fact that these lands included the town of Eureka, Eureka County’s landfill, power lines, subdivisions of homes, farms with alfalfa fields and irrigation systems, hay barns, and important portions of the Diamond Valley area, and there would be a “spillover” effect from the changes in adjacent federal land management that warranted additional analysis and opportunity to comment.  Because of risk of harm to sage grouse, the court did not enjoin the plan amendments pending completion of the new analysis.

9th Circuit upholds EA for Shasta-Trinity logging project

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The mantra I always use to hear was don’t use an EA if you might get sued.  Maybe things are different now?  Or maybe this was just one of those EAs that looked a lot like an EIS.

  • The Project’s proposed treatment methods will retain all existing snags greater than 15 inches in diameter, “unless deemed a safety hazard by the purchaser, or in the case of a need to meet coarse woody debris (CWD) requirements.” Because the Project only removes snags in two limited circumstances, it was reasonable for USFS to conclude that treatment methods will not reduce snag numbers below Forest Plan standards.
  • The Project’s Environmental Analysis considered a total of fourteen alternatives, five of which were discussed in detail.  The USFS reasonably concluded that not treating 17% of the Project area would thwart the major purposes of the Project.
  • USFS properly analyzed the cumulative impacts of the Project.  The Council on Environmental Quality (“CEQ”) Handbook does not require USFS to use the owl’s “natal dispersal” distance in its analysis.
  • While the uncertain effect of fires in spotted owl foraging areas may cast doubt on some aspects of the Project, the Project’s anticipated effects as a whole are not highly uncertain and do not trigger the need for an EIS.  Also, logging in designated critical habitat will be limited to areas that support lower-quality owl habitat—and no forest treatment will occur in nesting and roosting habitat.  “We think USFS has provided a ‘convincing statement of reasons’ to explain why [the Project’s] impacts are insignificant.”

Conservation Congress v. U. S. Forest Service.  March 31, 2017.

Fremont-Winema wins sucker lawsuit

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In Oregon Wild v. Cummins, the Oregon district court upheld the Fremont-Winema National Forest’s compliance with the requirement of INFISH to “modify grazing practices … that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish.”   The court quoted a prior case for INFISH requirements: “INFISH contemplates that its objectives are `targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.”  While plaintiffs identified streams that did not meet RMOs, the Forest had monitoring data that showed overall improvement in stream conditions. While past grazing practices had contributed to degraded conditions, the court held that now, “there is nothing to indicate that grazing is contributing to any failure to attain INFISH RMOs at a watershed level.”

The court dismissed Endangered Species Act claims regarding the impacts of grazing on two listed sucker species because the Forest was obligated to reinitiate consultation on its grazing permits on a 10-year schedule, which was now ongoing and must be completed prior to further grazing. It also dismissed a challenge to an EA used to approve livestock grazing because plaintiffs failed to exhaust their administrative remedies by appealing the decision (which would have stayed any further grazing until the appeal was resolved).   Finally, there was no significant new information that would require supplementing the EA for grazing allotments.