Jon Haber

Forest Service wins 2

by

The Forest Service turned back a challenge on the Manti-La Sal National Forest to its management of a research natural area in Utah Native Plant Society v. U. S. Forest Service. The state of Utah had introduced mountain goats outside of the national forest boundary, over the objections of the Forest Service that they could adversely affect the plants being protected by the RNA. Plaintiffs challenged the Forest Service for allowing the reintroduction, and failing to remove the goats after they were introduced. The court dismissed plaintiffs’ claims because there was no requirement for a special use permit for actions beyond national forest boundaries or for “migrating wildlife,” and the Forest had not yet determined the effects of the introduction nor decided to take any action on the mountain goats that could be challenged. The court did indicate that this was not the end of the story:

“Indeed, it would be nonsensical if an administrative agency could kick the proverbial can down the road by merely stating that more research must be conducted before acting. Eventually, after further research, the Forest Service will need to take a position.”

In Granat v. USDA a federal district court in California upheld the travel management plan for the Plumas National Forest against a NEPA challenge from counties and motorized user groups. It refused to require the Forest to conduct field surveys to support its environmental analysis because plaintiffs did not explain how that would have changed the outcome of the analysis conducted by the Forest. The court found that the Forest had considered an adequate range of alternatives, that the prohibition of non-highway legal vehicles on maintenance level three roads was reasonable, and that the Forest properly coordinated with local governments. The EIS also adequately considered economic and recreation impacts and the Forest adequately responded to public comments. A cumulative effects analysis beyond the Forest boundaries was not necessary. Changes between the draft and final EIS were not “substantial” and did not require a supplemental EIS. The court also upheld compliance with requirements of the Travel Management Rule.

Mendocino N. F. loses HFRA project lawsuit

by

The Eastern District of California District Court has reversed a decision by the Mendocino National Forest to implement the Smokey Project, which would include fuel and vegetative treatments intended to further habitat and fire management goals and contribute to the MNF’s timber production goals (Conservation Congress v. U. S. Forest Service). The project was located in a late successional reserve for northern spotted owls. It was prepared pursuant to the Healthy Forest Restoration Act, which requires only one action alternative to the proposed action if the additional alternative is (1) proposed during scoping or the collaborative process; and (2) meets the purpose and need of the project.

 

The court held that the Forest failed to consider an alternative with an 18” DBH diameter cap sought by plaintiffs.   The court interpreted the phrase “collaborative process” to include “something beyond ‘scoping.’” The court then listed 14 comments in the record that suggested a diameter cap for large trees and/or expressed concern over the cutting of larger trees. It concluded, “Based on the Plaintiff’s active participation throughout the iterations of the Project … the Court concludes that Plaintiff’s suggestions were made during the collaborative process.”

 

The court found that the Forest had failed to “explain why none of these triggered the HFRA requirement to prepare a single additional alternative.” While the Forest had considered a 10” DBH diameter cap as a alternative not considered in detail, the court agreed with plaintiffs that this was a “straw alternative” because no comments had suggested such a low limit. The plaintiffs argued that, “more limited thinning from below prescriptions with quantitative diameter limits … were a viable option that would meet all HFRA objectives, while also being consistent with LSR duties,” and this was apparently not contested.

 

The court also found that the EA failed to take the “hard look” required by NEPA because of the lack of this alternative, and for two other reasons. The explanations of the use of a “limited operating period” as a mitigation measure were conflicting and caused confusion about the effects. The project documentation also failed to explain why admitted failure to monitor other projects did not render this project’s impacts “uncertain.” The court upheld the decision against other NEPA claims, which included a claim that the purpose and need for the project conflicted with the forest plan. The court also found that the project complied with ESA and with NFMA consistency requirements, including compliance with the spotted owl recovery plan (which had been incorporated into the forest plan).

Federal lands and transitional economies

by

Headwaters Economics has released this update to a report discussed at length here last year:

 “Rural counties in the West with more federal lands performed better on average than their peers with less federal lands in four key economic measures.”

“This update of research from last year finds that from the early 1970s to the early 2010s, population, employment, and personal income on average all grew significantly faster—two times faster or more—in western rural counties with the highest share of federal lands compared to counties with the lowest share of federal lands. Per capita income growth was slightly higher in counties with more federal land.”

An article on “transitional communities” adds:

“Rural decline is a large and complex issue that appears to be accelerating. According to the Pew Charitable Trust, during the period between 1994–2010, 38.4 percent of U.S. rural counties lost population; since 2010, over two-thirds of rural counties lost population.  This level of decline has far-reaching national and international implications for food and energy production, tourism, and national culture and identity.”

Putting them together, it looks like public lands can be an important asset for minimizing or avoiding rural decline, if communities can get their act together to embrace this potential and plan for it.

“Particularly in declining communities where long-established residents remember the charm of life in simpler times, residents can have considerable resistance to change. This connection and preservation of the past, while a rural virtue, can impede its adaptation into the future. Resistance to any proposed solution that “hasn’t been done before” simply impedes innovation or positive transition.”

Custer-Gallatin wins salvage logging lawsuit

by

On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

The beginning of state management of national forests

by

A group of Western senators, including Sens. Jim Risch and Mike Crapo, both R-Idaho, have introduced a bill to allow states to implement their own conservation plans to protect sage grouse and their habitats, in lieu of federal management.

Congress would be allowing states to override the decisions by the Forest Service and BLM to amend their plans to protect sage grouse, which would amount to letting states take over planning for national forests to the extent that it can be tied to sage grouse in any way.

Resilient forests require change in “default” response to fire

by

Here is the key conclusion in an article published by the Ecological Society of America (the article specifically addresses “dry forests”):

One of the most important and fundamental challenges to revising forest fire policy is the fact that agency organizations and decision making processes are not structured in ways to ensure that fire management is thoroughly considered in management decisions. There are insufficient bureaucratic or political incentives for agency leaders to manage for long-term forest resilience; thus, fire suppression continues to be the main management paradigm. Current resource-specific policies and procedures are so focused on individual concerns that they may be missing the fact that there are “endangered landscapes” that are threatened by changing climate and fire…. Without forest resilience, all other ecosystem components and values are not sustainable, at least over the long-term. It is therefore necessary to create incentives and agency structures that facilitate restoration of wildland fire and ecologically based fuel treatment to forest landscapes.

The authors have recognized the problem that fire planning is not well-integrated with planning for other resources on national forest lands.  A key recommendation is to, “Make forest resilience a stand-alone, top land management priority and connect it to managing long-term for endangered species.” It criticizes the continued emphasis on fire suppression, including the strategy of suppressing fires to protect at-risk species.   The article strangely omits any specific references to the 2012 Planning Rule’s ecological sustainability requirements, which I think has incorporated resilience, and its relationship to species diversity, as a policy about as well as we could expect. The question is what will forest plans actually do to avoid the alleged “tunnel vision.” The authors credit the southern Sierra revision forests as “pioneering some of these efforts.”

The authors do offer one recommendation that I think should receive more attention in the planning process: “analyze long-term impacts of continued suppression.” I would expand the recommendation to more clearly recognize that forest plans are the place where overall fire management strategies will be adopted, including identification of resources and areas deemed in need of protection from fire. Desired ecological conditions based in these needs must then be a consideration in fire management decisions, which must by law be consistent with the forest plan. Decisions in a forest plan about or affecting fire management, including those that promote fire suppression, will have effects on ecosystems that must be evaluated and disclosed during the planning process.

Court protects frog from Freemont-Winema National Forest grazing

by

In a case with a long history, the Oregon district court enjoined grazing in a pasture on the Fremont-Winema National Forest to protect threatened Oregon spotted frogs and sensitive plant species. The frogs congregate in pools in late summer, and so do cattle.  The court found violations of both NFMA and ESA.

The court held that annual operating plans for grazing were arbitrary and capricious because they were based on a viability analysis that assumed planned levels of grazing instead of the actual trespass and unauthorized use that was occurring and causing damage. Thus the Forest Service couldn’t show that the AOIs met the requirement in the plan to manage for viable populations of these species.

It also remanded the biological opinion that the Fish and Wildlife Service had prepared on the allotment for the newly listed frog. The court found the no-jeopardy conclusion was not supported by the record because there was no scientific basis for a 35% forage utilization rate protecting the frog, it did not provide a rationale for using studies from other areas, and did not explain why it failed to consider non-lethal incidental take in the final BiOp when it had done so in the draft. The magistrate judge suggested the latter was “a strategic application of a measurement convention that results in less apparent OSF loss…”

A NEPA claim was dismissed because Congress has overridden the usual NEPA timing requirements for grazing allotment planning.

Court slams Forest Service wilderness decision

by

The federal district court in Idaho has ruled against the state’s use of helicopters to collar elk in the Frank Church-River of No Return Wilderness. In Wilderness Watch v. Vilsack it held that the Forest Service failed to consider the cumulative impacts of a one-year proposal when it knew the state intended this to be part of at least a ten-year program. It found that the decision to not prepare an EIS violated NEPA.

The court also found that the Forest Service violated the Wilderness Act. In 2010, the court had approved use of helicopters to collar wolves because its purpose of “understanding the wolf” furthered wilderness values. However, the judge warned that, because of cumulative impacts (and probably because of some skepticism about the state’s motives), “the next project will be extraordinary difficult to justify,” and that the Forest Service would need to give sufficient notice to allow opponents to “fully litigate” such projects.

The Forest Service issued a special use permit in January 2016, and within two days the elk collaring was completed, along with four wolves not authorized by the permit. The court rejected state arguments that it didn’t need permission, and held that the Forest Service failed to make a proper determination that the helicopters and collaring were necessary for wilderness management because it considered only “a one-year portion of a much larger long-term plan.”

The relief granted by the court is noteworthy:

  • Injunction preventing the Forest Service from considering any of the data gathered from the elk and wolves as a result of this project
  • Injunction preventing the Forest Service from approving any future helicopter projects without delaying implementation for 90-days to allow affected groups to file challenges to the projects
  • Inunction preventing the state from using any of this data in further proposals seeking approval from the Forest Service
  • Mandatory injunction ordering the state to destroy the data received on the elk and wolves collared in this project

How do you suppose the Forest Service rewards this kind of decision-making?

Interior nominee Zinke talks about federal lands

by

He had a lot of interesting things to say that generally put him within the normal range of political appointees to this position (a nice surprise, given some of Trump’s other nominees), including retaining federal ownership and understanding of climate issues, and this:

An admirer of President Theodore Roosevelt, Zinke said management of federal lands should be done under a “multiple-use” model set forth by Gifford Pinchot, a longtime Roosevelt associate and the first chief of the U.S. Forest Service.

Zinke also pledged to tackle an estimated $12 billion backlog in maintenance and repair at national parks, saying parks and other public lands should be a key part of Trump’s infrastructure improvement plan.

But the former Navy SEAL said his most important task at Interior will be to “restore trust” between the agency and the states and Indian tribes it serves.

“One of the reasons why people want to sell or transfer public land is there’s no trust, because they feel like they don’t have a voice,” Zinke said, referring to elected officials and residents of many Western states. “They feel like they don’t matter. Well, they should matter.”

The question of how much local interests and which local interests should matter to decisions for federal lands has always been a matter of degree and circumstances.  For example he might be talking about the “bi-partisan solutions” mentioned by Trout Unlimited.  But note the “nuanced” comment from Senator Tester, because “Zinke had last June endorsed a bill handing management of federal lands to state or local governments, while leaving ownership of those lands to the feds.”  (We should expect that USDA Forest Service policy under whomever is selected as Secretary would line up with USDI.)

Forest planning for federal land ownership

by

The Superior National Forest has received a notice of intent to sue over a land exchange that would allow development of a mine on the former national forest lands. The notice involves federally listed wolves and lynx. My question was whether the exchange is consistent with the forest plan as required by NFMA.

The Superior National Forest Plan contains very useful direction for land exchanges. It includes priorities for acquiring land (one of which is “Land needed for habitat for federally listed endangered, threatened, proposed, or candidate species or for Regional Forester Sensitive Species,” but that was not invoked by the ROD for this exchange). The plan also includes criteria for conveying land out of federal ownership, and it determines whether lands in each forest plan management area are suitable for conveyance.

The Record of Decision for this exchange first finds that a mine in this location would be inconsistent with the forest plan direction for the area. It then addresses the criteria for acquisition and conveyance (which are guidelines in the forest plan) and finds that the exchange would be consistent with the forest plan. The lands in the federal parcel to be conveyed are in the “General Forest and General Forest-Longer Rotation Management Areas” where conveyance is allowed. They also contain a lake, and there is a forest plan guideline to retain ownership of lakes. However the guideline is defined to allow deviation as long as the purpose of the guideline is met, and the exchange would produce a net gain in national forest water frontage.  The ROD also considers the mining project and land exchange in relation to Forest Plan direction related to larger areas on the landscape, including lynx analysis units.  (The ROD mistakenly cites the 2012 Planning Rule consistency provisions, which do not apply to plans developed under prior planning regulations, but the result should be the same.)

The plan components in the Superior Plan seem to have provided for a relatively smooth project planning process. Other forest plans I’ve seen provide much less guidance for land adjustments. It is important for a forest plan to recognize areas that provide important values by including plan components to retain and acquire such areas (which may then be supported by more detailed land adjustment planning). This may be especially important in planning for wildlife habitat connectivity in mixed ownerships.