Jon Haber

Court holds up mining project after fire affects sensitive plant

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On July 11, the Idaho federal district court reversed a Forest Service decision to approve a mining exploration project on the Boise National Forest. The legal issues arose when the Grimes Fire burned habitat for the Sacajawea bitterroot (abbreviated “LESA”), in an area supporting the largest population of a plant designated as a sensitive species by the Forest Service. The court found that the analysis of changed conditions was inadequate, leading to violations of both NEPA and NFMA (Idaho Conservation League v. U. S. Forest Service):

“The Forest Service recognizes the baseline data needs to be re-established following the 2014 Grimes Fire but instead of compiling and analyzing that data up front, the Forest Service has incorporated those NEPA steps into the Project itself. The selected Alternative B anticipates conducting a new baseline study during the Project and then monitoring and mitigating to protect the LESA species. (CU080344-51.) This approach puts the cart before the horse by prematurely asking for approval of the Project before the necessary baseline data and analysis are conducted. NEPA demands that the Forest Service analyze a project’s impacts before it is approved; not as part of the Project itself.

“The Defendants’ reliance on the Project’s design features, monitoring, and mitigation measures does not cure the failure to re-evaluate and analyze the Project’s impact on LESA following the Grimes Fire.  Without accurate baseline data before the Project begins, it is impossible to know whether and to what extent the Project’s activities will impact LESA even with the proposed design features, monitoring, and mitigation features. As thorough as these features of the Project appear to be, the Forest Service’s failure to re-evaluate LESA’s current baseline leaves too much unknown for the Forest Service to have concluded that the Project will not have a significant impact on the LESA population.

“Additionally, the Complaint alleges the Forest Service violated NFMA by failing to follow Guideline BTGU01 which requires it to conduct up-to-date surveys of Sacajawea’s bitterroot habitat and plant presence. (Dkt. 1 at ¶ 77.)  Consistent with its ruling on the NEPA claim, however, the Court finds the Forest Service failed to re-evaluate the baseline data for LESA following the Grimes Fire prior to approving the Project. Without an accurate baseline, the Project’s monitoring and mitigation measures will not be effective or accurate. Failing to obtain the necessary baseline is contrary to Guideline BTGU01 because the Forest Service did not determine the existing suitable habitat for and presence of LESA within or near the project area. (CU053833.) For these reasons, the Court finds the Forest Service was arbitrary and capricious and in violation of NFMA.”

Another way that fires make life hard for the Forest Service, and another example of how short-cutting the NEPA process makes it harder.  A “trust us” approach doesn’t sell well under NEPA or NFMA.

Read the Multiple-Use Act

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It’s worthwhile to re-read the law every once in awhile.  This time, because of some recent discussions here, a couple of things stood out.  Here’s the definition of multiple-use:

‘‘Multiple use’’ means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.”

The first italicized phrase indicates that any supposed “commitments” (by Gifford Pinchot or otherwise) prior to this law to any particular uses in particular places have been overwritten by Congressional authorization to change land management to meet current needs (to be determined by a forest planning process).  (I guess that also makes the “high level” of sustained yield in that definition something that has to be determined in light of current needs.)

The second refutes the notion that there is any requirement in the law that national forests be managed for “things” that produce dollars (or jobs).

It’s probably also worth reiterating the part of the law that nullifies the “wilderness is not multiple-use” argument:  “The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of this Act.”

“Patriot” attack on public lands (and its users and employees)

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Some members of Congress are trying to shine a spotlight on the threat to public land from armed militias.  They point out the direct threats, but also link them to the attempts to transfer federal lands to states:

“Anti-government extremists didn’t always direct their ire at public-lands agencies. That changed, in part, because a group of Western congressmen, state legislators and county sheriffs built their careers by advocating the transfer of millions of acres of federal land to states or counties, even though no state or county had ever owned the land in question or could afford to manage it now.”

They cite, in particular, a letter from 32 former employees of federal land management agencies (including three former Forest Service chiefs), which lists ten threats to public lands from anti-government extremism.

 

Federal lands support diverse economies

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Recent research by Headwaters Economics asked whether federal lands are an economic liability or an asset to rural communities (summarized in this opinion piece).

On average, we find that from 1970-2014, rural counties with the most federal land grew much faster than similar counties with the least federal land: population grew four times faster, employment grew three times faster and personal income grew twice as fast. Per capita income grew slightly more in places with more federal lands.

This analysis suggests that, in general, federal lands do not inhibit a community’s economic growth. On the contrary, the research suggests these lands have the potential to contribute to a prosperous rural economy.

You can always pick on the details of economic analysis, but here is what this tells me about the big picture.  While there will always be winners and losers, it’s hard to argue that the presence of federal lands is a big reason for the losers.

Court assumes collaboration represents the public interest

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On June 14, the Idaho federal district court refused to grant a temporary restraining order against a timber sale on the Payette National Forest.  The court’s review of the merits of the case was cursory, and instead it focused on the standard for granting an injunction.  A key question is whether the injunction would be in the public interest.

The Payette Forest Coalition had participated in developing the project, and had intervened in the case on the side of the Forest Service.  In determining the public interest, the court noted that, “the Project was developed in a collaboration between the USFS and a diverse group of stakeholders, including the Intervening Defendants.”  The court also stated that, “the collaborative efforts of all Defendants in developing the Project is in the public’s interest,” and finally, “the public has an interest in supporting the collaborative process that was used in this case to develop the Project.”  The court denied the TRO (citing a number of other factors in the public interest as well).

There is no evidence that the plaintiff environmental groups challenged the assumption that this collaboration was in the public interest, which, based on many discussions on this blog, should probably be considered a debatable point.

Fire planning in the southern Sierras

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This article describes the draft revised plans for the Inyo, Sierra and Sequoia national forests (from an ag industry perspective).  The way it characterizes the plans’ approach to fire, maybe this approach would make Robin Stanley happy:

The preferred alternative, known as Alternative B, would replace wildland-urban defense and threat zones with a “risk-based wildfire restoration zone and wildfire maintenance zone” to allow for “strategically located fuel reduction treatments along roads, ridgelines and connecting areas with lower fuels to support larger landscape-scale prescribed burning.”

Under the heading “Ecological Integrity,” the preferred alternative calls for improved habitat for endangered and protected species and old-growth forest areas. It also calls for removal of some large and old trees in areas designated as wildfire-protection zones.

This will hopefully lead to some scrutiny of the “best available scientific information” behind the strategy.  I find it hard to believe that the local residents could be convinced to give up their “wildland-urban defense and threat zones.”  And then there’s the question of whether this science has any relevance to the forests of Idaho or elsewhere.

And then there’s the question of whether this approach is consistent with the natural range of variation for ecological conditions for at-risk species so that it really does improve their habitat.   If so, it would be a win for everybody.   Except the timber industry doesn’t like it.

But – I commend the Forest Service for treating fire planning as a core element of these plan revisions, and putting this out in public for discussion.

National forests on the campaign trail (or Hillary on the stump)

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“Hillary Clinton’s Plan for Conservation and Collaborative Stewardship of America’s Great Outdoors”

Hillary Clinton believes that restoring and protecting the health of America’s forests requires managing them for the full scope of benefits they provide. Clinton will work with the U.S. Forest Service and Bureau of Land Management to set clear management goals that not only recognize the value of forests and public lands for sustainable timber, but for the carbon they absorb, the wildlife habitat they furnish, and the recreation opportunities and clean drinking water they supply. Clinton will build on the success of the Roadless Rule by working to protect and restore old growth and large landscapes that are essential to the health of fish and wildlife. Recognizing that climate change is increasing the dangers and costs of large wildfires in many areas, Clinton will also work to reform the wildfire budget to ensure that firefighters, states, and communities have the resources they need to fight fires every year, and to end the damaging practice of transferring resources away from initiatives that help reduce fire risk and restore the health of forests.

In recent years, special interest groups have been supporting efforts to dispose of or sell off America’s public lands, which would privatize national forests, national monuments, and even national parks. Clinton strongly opposes these proposals to sell off America’s natural heritage. She will fight to protect the rights of our children and grandchildren to explore the lands and waters that define us as a nation.

Clinton will set a goal of unlocking access to at least 2 million acres of currently inaccessible public lands by the end of her first term – halving the amount of public land that is currently off-limits – by pursuing voluntary conservation partnerships with private landowners and state governments to establish new access points, trails, and easements to open public access to public lands.

Clinton will expand energy production on public lands and waters ten-fold within ten years of taking office, while reforming federal fossil fuel leasing.  Through smarter planning, public input, and careful decisions, the federal government should be directing developers – whether for renewable energy projects or mineral extraction – to areas with the fewest potential environmental costs, while clearly identifying those special places that should be safeguarded for future generations.

Clinton will advance a joint Department of Interior/Department of Agriculture program to commercialize biomass energy opportunities associated with sound forest management and agricultural practices

Clinton will ask the Small Business Administration (SBA) to dedicate a portion of SBA loans to entrepreneurs seeking to launch small businesses in the outdoor industry as well as existing business owners in gateway communities.

Trump’s alternative anyone?

Join the forest plan revision party

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The Francis Marion National Forest was the first out of the gate last fall.  It is now joined by the southern Sierra national forests (Inyo, Sequoia and Sierra) and Flathead.  The draft plan and EIS for the Sierra forests were released on May 27th for a 90-day public comment period.  The Flathead will be officially out on Friday June 3rd for a 120-day comment period (but the documents are on their website now).  Experience the 2012 Planning Rule!

Fracking on the Wayne National Forest – no significant impact

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This story got me to look closer at planning for fracking on national forests.  The reason the BLM can say this in their EA is arguably because a lease does not “authorize surface disturbing activities.”  Here’s the way it works.

“The Bureau of Land Management (BLM) proposes to lease up to approximately 40,000 federally-owned minerals located in the Wayne National Forest, Athens Ranger District, Marietta Unit in Monroe, Noble, and Washington Counties in Ohio. This approximate acreage figure represents the total amount of federally-owned minerals that could be nominated and potentially be made available for leasing on the Marietta Unit. Industry uses the BLM Expression of Interest (EOI) process to nominate federal minerals for leasing. To date, industry has submitted over fifty EOIs for parcels located on the Marietta Unit totaling approximately 18,000 acres.”

“The proposed leases would provide the lessee(s) exclusive rights to explore and develop oil and gas reserves on the leases but do not authorize surface disturbing activities. Although there would be no surface disturbance from the action of leasing, the Environmental Assessment (EA) analyzes a reasonably foreseeable development scenario (RFDS) to address the anticipated environmental effects from potential future oil and gas development. Before a lessee or operator conducts any surface disturbing activities related to the development of these leases, the Bureau of Land Management (BLM) must first approve an application for permit to drill (APD) as specified in 43 CFR 3162. In an APD, an applicant proposes to drill the well subject to the terms and conditions of the lease. Upon receipt of an APD, the BLM conducts an onsite inspection with the applicant and the landowner. The Forest Service and BLM would also conduct additional site-specific analysis in compliance with the National Environmental Policy Act (NEPA) and the appropriate consultations under the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) prior to approving the APD.”

So for example, here are the effects of the proposal on “Recreation, Land Use and Noise:”  “No direct impacts from leasing. Minor, short- and longterm changes to land use from reasonably foreseeable development activities due to conversion of undeveloped areas to areas that support oil and gas development. Future reasonably foreseeable effects minimized by stipulations and other Forest Service measures for protecting recreation resources. Noise levels would lessen during the production phase.” Another example – effects on air resources would be mitigated by “Standard Operating Procedures (SOPs), best management practices (BMPs) and conditions of approval (COAs) at time of drilling.”

Where I come from, NEPA requires accounting for “reasonably foreseeable effects,” and I think that is what is being described here.  And I think they meet the significance criteria in NEPA to require an EIS.  I don’t see how BLM can rely on mitigating effects through “stipulations and other Forest Service measures” – unless they are known, in-place mandatory forest plan standards, or if they have been incorporated into the terms of the lease. The EA cites these requirements:  “The following notifications and stipulations implement the standards and guidelines of the Wayne National Forest’s 2006 Land and Resource Management Plan (Forest Plan). These are in addition to the standard lease terms for oil and gas leases (BLM Form 3100-11).”  All other sources of potential mitigation would have to be considered speculative.

There is another NEPA process at the permitting stage where these effects may be addressed.  The EA states, “The lessee is hereby made aware that all post lease operations will be subject to appropriate environmental review and may be limited or denied by no surface occupancy stipulations.”   In reality, once a lease is signed, what discretion does the Forest Service have to deny or severely restrict a permit?  Maybe someone could refresh my memory on how this has all been sorted out in court.