Jon Haber

Nez Perce Clearwater salvage project enjoined

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The Idaho District Court enjoined the Johnson Bar Salvage Project on May 12, finding  violations of NEPA and the Wild and Scenic Rivers Act.  During the time between the release of the DEIS in March of 2015, and the publication of the FEIS in October of 2015, timber harvesting activities on burned state and private lands had occurred or were underway, and additional wildfires had burned or continued to burn, near the project area.

The court found that the Forest had failed to take a hard look at the effects of these events on sediment and visual quality, and should have prepared a supplemental EIS to address the new information.  The main flaw was failing to undertake a quantitative effects analysis of the new sediment sources comparable to what had been done for the original baseline.  There were also conflicting statements in the fisheries evaluation, and evidence that road decommissioning would not reduce sediment as claimed.  There was no support in the record for conclusory statements in the ROD about a lack of cumulative effects.  The urgency of the salvage harvest was not given great weight in the balancing of interests that supported the injunction because the project was scheduled over five years.

This sounds like a case where shortcuts were taken to try to complete a project that was overtaken by events.  Haste makes waste.

The Wild and Scenic River holding involved an out-of-date river plan, but may have some implications for vaguely written forest plans (in relation to rivers, diversity or other requirements):

The Forest Service cannot effectively analyze, nor can the public and Court crosscheck, the Forest Service’s analysis, without a River Plan that delineates objective standards, or predetermined criteria, for describing, assessing, and protecting the Wild and Scenic values of the Rivers. Without objective, predetermined criteria, the public is left to trust the Forest Service’s “word” that it considered all relevant factors necessary to protecting the Middle Fork Clearwater and Selway Rivers’ Wild and Scenic values and that the Project will not affect or have minimal impact upon the Wild and Scenic values.”

Even the 9th Circuit piles onto plaintiffs

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On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber.  The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion.  This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.”  The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”

I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.”  Specific locations of the thinning activities were not identified.  With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.

The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply.  He should have said that it did, but that the requirements applicable to it were met.

Project complies with spotted owl recovery plan requirement in Shasta-Trinity forest plan

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The Eastern California district court upheld the Harris Project on the Shasta-Trinity National Forest on Feb. 26. The project would treat about 2800 acres in northern spotted owl habitat. The Forest Service determined that the project would be “not likely to adversely affect” spotted owls, and the Fish and Wildlife Service concurred. The court found that spotted owls would be able to continue to feed, shelter, or disperse within the 17 acres of treated area in foraging habitat, and therefore the determination and concurrence complied with ESA. It also found that incomplete surveys were the best available science for determining owl presence.

 

The court also found that the agencies followed the recommendations in the spotted owl recovery plan. The recovery plan encouraged long-term improvements in habitat even if there were some short-term adverse effects, and, “Defendants weighed the short-term impacts against the long-term benefits and concluded that the Harris Project would ultimately help protect and increase northern spotted owl habitat. The court deferred to the agencies’ judgments that this project complied with this strategy. (The highlighted terms suggest that there would in fact be adverse effects that should have required a finding of adverse effects and triggered formal consultation to comply with ESA. Offsetting beneficial effects do not negate this ESA consultation requirement.)

 

As result the court also held that the project complied with NFMA because it was consistent with the Shasta-Trinity forest plan that required the Forest to, “maintain and/or enhance habitat for” threatened, endangered, and sensitive “species consistent with individual species recovery plans.”

 

The court also upheld the Forest Service NEPA process. It adequately addressed the effects on spotted owls of promoting ponderosa pine, and properly concluded that other treatments would lead to overall effects that would be beneficial. The court also found that a new report on reducing fire risk (Lydersen) did not contradict information used by the Forest Service, and therefore an SEIS was not needed to address it.

Wish you were on the Dixie?

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The Utah federal district court upheld the Dixie National Forest decision on the Iron Springs Project (argued at a hearing in July 2014) in Alliance for the Wild Rockies v. Bulletts. The Project involves a range of vegetation management activities including intermediate harvest treatments, salvage of timber killed by or dying as a result of beetle infestation, regeneration of aspen, and reforestation of previously harvested areas. Commercial logging would occur on 3,603 acres of spruce/fir.

 

Most of the plaintiff’s claims were based on NEPA. The court found that an EIS was not necessary, focusing on the fact that the project affected only 0.5% of the national forest. It found the analysis of effects on old growth species and other at-risk species (including threatened Utah prairie dogs) to be adequate. There were also no unique characteristics of the area, and no controversy about the effects of the project on several wildlife species.

 

The court was a little creative (or inexperienced) in brushing off potential controversy about using timber harvest to address beetle kill. It concluded that, “Even if the efficacy of timber harvest for the purpose of addressing beetle kill is highly controversial, addressing beetle kill is only one of six stated reasons for the Project.”   This suggests that adding non-controversial purposes to a project can somehow offset any other controversy that exists – a dubious NEPA proposition.

 

Plaintiffs also pointed out that a goshawk amendment to the forest plan had been in place for a decade longer than intended, based only on an EA. However, they did not challenge the forest plan, and the court found that the project was consistent with the forest plan, and that a 2012 scientific review of the amendment validated the best available science for goshawks. The court also upheld viability analysis of management indicator species, which showed that the project area would continue to support sufficient numbers of flickers and three-toed woodpeckers.

Klamath Westside salvage project

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I thought this article provided a succinct overview of the state of salvage logging in California.  I was curious about what kind of a logging project the Center for Biological Diversity and local environmental groups were supporting.

Table 11 in the ROD shows that the tribal alternative they supported would harvest about 2000 acres. The selected alternative would log three times that.  Why did the Forest Service pick the latter over the former?

“As shown in Table 12 (sic), there is considerable overlap between the Karuk Alternative and the Selected Alternative;”

Did the FS miss the obvious point here?  That the magnitude of the project is the problem because it would affect water quality and salmon runs?  (Or is this what “pound sand” means?)

It was also interesting to read the earlier letter from the Karuk Tribe chairman that describes the tribal interest in prescribed fires.  I wonder if the Forest Service has considered managing the historic tribal lands for “production of acorns, wild game, medicinal plants and basketry materials,” among its multiple uses.

Another classic settlement

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A follow up to an earlier post on ATV litigation on the Okanogan-Wenatchee National Forest.

“Under the settlement, the Forest Service agreed not to authorize public use to all-terrain vehicles without first completing an assessment of environmental effects. The agency also agreed to re-survey routes and remove any remaining signs authorizing ATV use.”

“The federal agency denied the groups’ allegations but agreed to pay their attorney’s fees as part of the settlement.”

This telegraphs something important that the Forest Service gets out of settlements. They don’t get a judicial precedent, and that gives them more flexibility to use the same disputed approach in future actions (and better protects other past actions that used this approach, at least for awhile).

Forest planning could promote efficiency by “standard work”

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The Colorado Department of Transportation and U. S. Fish and Wildlife Service have developed a new process for protecting federally listed species. “When fully implemented, the improvements made through SWIFT will also save CDOT hundreds of hours of report writing and tens of thousands of dollars of consulting fees every year.”

“SWIFT is a programmatic statewide review that assesses impacts to these protected federal species and implements pre-determined standardized conservation measures to avoid or minimize impacts to the species and associated habitat – a great example of using the Lean principle of “standard work”. SWIFT provides these standardized impact assessments and mitigation measures for 92 common CDOT construction activities for all threatened or endangered species in the state as well as candidates for future listings. SWIFT is a tool to expedite project delivery by providing project teams with consistent impact determinations for similar work and predictable conservation measures.”  (“Lean” is a management principle that means creating more value for customers using fewer resources.)

The Forest Service has completed similar programmatic consultations on land management activities that may affect listed species. The result is to streamline consultation on projects that fit the pre-determined conditions.   However, individual managers can choose not to follow them and incur higher consultation costs.  Forest planning should consider the costa and benefits of allowing this discretion, and consider incorporating plan components that promote standardization of conservation measures for projects in the plan area.

The Forest Service has also worked with the consulting agencies to adopt uniform conservation and mitigation measures across the range of certain species in its forest plans (such as for Canada lynx). However, in general, the Forest Service resists the idea of adopting “standard work” principles in its forest plans, preferring to characterize this in derogatory terms as “one size fits all.”   It seems to prefer to allow local managers to invent their own wheels, as indicated by proposing changes in range-wide conservation strategies during individual plan revisions, and avoiding the use of mandatory standards that all projects would have to comply with.

Most managers (like those with CDOT) would recognize this as a costly and inefficient process. What does it buy? Comparing the costs and benefits of Forest Service decentralized decision-making would be a good exercise for the GAO on behalf of federal taxpayers.

 

It’s just an administrative rule

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The courts are finished with addressing the Forest Service Roadless Area Conservation Rule’s application to Alaska.  The Supreme Court won’t review the Ninth Circuit’s reversal of the attempt to exempt the Tongass National Forest from the rule.  Whew – glad that’s finally over.  But wait, there’s an election coming, and roadless rule opponents are thinking about that:

“And then the other thing is we could just get a … federal administration that’s friendly toward responsible resource development and they can just rescind the rule because it’s an administrative rule. It’s nothing that Congress passed.” (Owen Graham of the Alaska Forest Association)

And why stop with Alaska; rescind the entire roadless rule.  And why not replace the 2012 Planning Rule, too?  The possibilities are endless.

Fish and Wildlife Service points forest planning towards less post-fire logging

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Yesterday, the Center for Biological Diversity shared its displeasure with pending timber sales on the Klamath National Forest. It also cited a previous letter from the FWS making recommendations regarding the same project. Together they point out the importance of forest planning to recovery of listed species.

Under the Endangered Species Act, each proposed project must only be reviewed against a criterion that prohibits actions that are likely to jeopardize the continued existence of the species. However, ESA also requires all federal agencies to carry out programs for the conservation of listed species. “Conservation” under ESA means to use all methods and procedures that are necessary to recovery of listed species. Under the 2012 Planning Rule, forest plans must contribute to recovery of listed species.

In its earlier letter, the FWS recommends conservation measures that would contribute to spotted owl recovery.   While directed towards this particular project, such measures need to be given serious consideration as means to meet the recovery obligations of forest plans. Some key messages in the letter:

“Given the spotted owl’s current population trend, the 2011 Revised Recovery Plan for the Northern Spotted Owl (link omitted) calls for retaining existing spotted owls on the landscape to the greatest possible extent throughout the species’ range.”

“Our overarching recommendation is for land managers to use the full suite of management tools (e.g., mechanical treatments, prescribed burning, let-bum policies, etc.) to ‘move’ forest landscapes to fire regimes that are more characteristic and natural consistent with the ecological setting.”

“Low, moderate and, in some cases, high-severity fires maintain habitat conditions conducive for spotted owls, and we recommend minimizing salvage or harvest activities in areas where spotted owls remain post-fire.”

“In general, most scientists agree that salvage logging does not contribute positively to the ecological recovery of naturally disturbed forests (citation omitted). In our experience many post-fire salvage projects tend to be more opportunistic than part of a larger-scale, proactive strategic planning effort to reduce fire spread and severity. Such a larger scale effort could include landscape level considerations for both fuel reduction and strategic fire breaks while incorporating considerations for spotted owls and other land management priorities. Recovery Action 12 in the Revised Recovery Plan recommends retaining post-disturbance legacy structures (such as large, dead tees, whether standing or down) in areas that are managed for spotted owl habitat because these features greatly improve the quality of the habitat as it recovers over time. It is important for action agencies to seek ways to implement important fuel reduction work without overutilizing salvage togging that can adversely affect the restoration of natural conditions.”

This is the kind of best available scientific information that the Forest Service must take into account when it revises forest plans for national forests with spotted owl habitat.  It demonstrates that there is a need to change existing plans so that future projects are based on a broad-scale conservation strategy that reflects current scientific understanding of post-fire logging in spotted owl habitat.  These recommendations could readily be translated into plan components that are needed in the forest plan to contribute to recovery of spotted owls.