Jon Haber

California spotted owl listing process

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As Larry mentioned a month ago, the U. S. Fish and Wildlife Service has made a positive 90-day finding on a petition to list the California spotted owl under ESA.  This means that listing may be warranted, and the agency is soliciting additional comments by November 17.

The action was taken in response to a petition last December by the Wild Nature Institute and the John Muir Project of Earth Island Institute.  A second petition was submitted by Sierra Forest Legacy and Defenders of Wildlife in August.  The SFL website lists the new scientific information that supports listing, which among other things downplays the idea that fires are bad for owls.   The FWS response to the earlier petition states:  “Recent research has focused on use of burned forests by CSO and has concluded that unlogged burned areas may be important to reproductive success and continued occupancy.” 

The petition response also implicates national forest plans as another detrimental change that has occurred that must be considered in determining the adequacy of existing regulatory mechanisms for protecting the species:

  • 2004a USDA. This amendment to the 2001 US Forest Service Forest Plans
    (USDA 2001) allowed increased or new timber harvest, thinning. fuels
    reduction. post fire logging. etc. in areas previously managed for CSO.
  • USDA 2013b. Management in the Lake Tahoe Basin Management Unit
    allows clear cut timber harvest and removal of larger diameter trees (>30″
    dbh) in CSO habitat and previously occupied nest areas.

It is currently Forest Service policy to not contribute to listing under ESA.

Using national forests to combat Canadian timber subsidies

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The Missoulian reported today on the effects of the expiration of the Canadian trade agreement, which will make Canadian timber relatively cheaper than that from the U. S. because the industry is subsidized by the Canadian government.  The Montana Wood Products Association proposes, that until a new international trade agreement could be negotiated (whenever that may be):

“We need to ask what the Forest Service can do to bring down the cost of raw fiber.”

How would this be done?  (Voiding environmental laws anyone?)

Politicizing science – the view from the front lines

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A survey from the Union of Concerned Scientists included employees of CDC, FDA, FWS and NOAA.

A significant number of scientists (46 to 73 percent of respondents across agencies) reported that political interests at their agencies were given too much weight in their agencies.  Many scientists told us that scientific decisions were being swayed by politics or that political influence inhibited their ability to carry out agency missions.

The Fish and Wildlife Service was at the 73% end of the scale where one employee said,

“It is my perception that upper-level managers are influenced by fear of Congress dismantling the Endangered Species Act and/or otherwise interfering with the mission of the Service.”

One would expect that this would eventually lead to litigation about not following the law (followed by Congress complaining about the plaintiffs and the courts).

Interesting that another question in the survey indicates that Congress is as guilty as advocacy groups are for slowing the ESA process down.  While the Department of the Interior is credited with investing in scientific integrity, the Agriculture Department is singled out for not doing so.

Opening roads to motorized use requires NEPA

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It seems like this should be obvious, but it apparently took a lawsuit to get the Okanogan-Wenatchee National Forest to agree.

Thursday’s reversal by the Okanogan-Wenatchee National Forest of its June decision to allow wheeled all-terrain vehicles (WATVs) on six Forest Service routes was met with mixed reviews by people on both sides of the motorized trail-use issue.

(The lawsuit) charged that opening the roads to WATVs not only violated the National Environmental Policy Act (NEPA) but was also premature, since the Okanogan-Wenatchee has yet to complete its long-overdue Travel Management Plan. The federally mandated plan is supposed to guide the use of off-road recreational vehicles on public lands.

Thursday’s Forest Service announcement said any decision to reopen those six roads to WATVs would be based on additional NEPA analysis, but didn’t reference the Travel Management process.

While the plaintiff’s primary concern may be the sequencing of travel planning and road management decisions, the NEPA concession could be at least as important.  The Forest Service has generally tried to limit its analysis of road use effects to the travel planning process.  The conclusion reached here could also be applied to roads and trails currently open to motorized vehicles that have never been through a NEPA process to consider their effects, or that have never been reviewed for effects on listed species under the Endangered Species Act.

Sagebrush rebellion goes down in flames

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The U.S. District Court for the District of New Mexico has ruled that an Otero County resolution permitting the removal of trees from the Lincoln National Forest is unconstitutional because it violates the Supremacy Clause of the U.S. Constitution.  The court’s order also invalidated the New Mexico state statute upon which the Otero County resolution relied because it too violated the Supremacy Clause.

We’ll hope the Forest Service helps spread the word to the rest of the states and counties that believe otherwise.

Helping realtors think about climate change

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Previous posts have discussed how where we choose to live contributes to the effects of climate change, both by promoting carbon lifestyles and building in locations at risk.  The Missoula Organization of Realtors hosted a conference on the effects of climate change on their industry.  This is a step in the right direction.  Missing from the presentation though were the perspectives on urban interface living from local government planners and public land managers.

Forest Service to pay attorneys fees to industry group that challenged a settlement

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The U.S. Forest Service has agreed to pay an oil and gas industry group $530,000 for attorney fees it incurred in a long-running battle over drilling in the Allegheny National Forest, according to a court document filed Thursday.

The Pennsylvania Independent Oil and Gas Association sued to overturn a 2009 agreement between the government and two environmental groups that banned drilling while the agency conducted an environmental impact study. The industry contended that the ban exceeded the Forest Service’s authority.

U.S. District Judge Sean McLaughlin agreed and, in September 2012, permanently overturned the agreement. The 3rd U.S. Circuit Court of Appeals upheld his ruling in January 2014.

http://triblive.com/news/allegheny/9152266-74/forest-industry-service#ixzz3n4DOXNQV

I await the cries of indignation.

Forest/BLM planning avoids sage grouse listing; states don’t like that

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While the wisdom of Congress prevents the U. S. Fish and Wildlife from saying so, the agency’s draft of the decision to not list the greater sage grouse under ESA states:

“The Federal Plans establish mandatory constraints and were established after notice and comment and review under the National Environmental Policy Act (NEPA).  Therefore, changes to the Federal Plans would require additional notice and comment and further analysis under NEPA. All future management authorizations and actions undertaken within the planning area must conform to the Federal Plans, thereby providing reasonable certainty that the plans will be implemented.”

In 2010, the FWS had found that sage grouse were warranted for listing, in part because of the lack of adequate regulatory mechanisms.  The new draft concludes now that, “regulatory mechanisms provided by Federal and three State plans (those with the greatest regulatory certainty) reduce threats on approximately 90 percent of the breeding habitat across the species’ range.”  This was a determining factor in reaching the “not warranted” conclusion this time.

Success?  Officials in Idaho and Nevada and some mining companies sued the federal government over new restrictions on mining, energy development and grazing that are intended to protect the sage grouse.

Idaho Gov. C.L. “Butch” Otter said Friday that federal officials wrongly ignored local efforts to protect the bird, leading him to sue in U.S. District Court in Washington, D.C.  “We didn’t want a (threatened or endangered) listing, but in many ways these administrative rules are worse,” the Republican governor said in a statement.  A similar lawsuit was filed in Nevada by an attorney for two counties and some mining companies.

If these plaintiffs are successful in rescinding the federal plan amendments, the decision to not list the sage grouse would probably no longer be justified (state plans are much more voluntary), and it shouldn’t take the FWS too long to rewrite their conclusion.  But I guess that is what the commodity interests want.

Forest planning contributes to listing species under ESA

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A recent federal court decision has invalidated the listing of the lesser prairie chicken.  A key reason for the court’s decision was that the Fish and Wildlife Service made an assumption that if it didn’t list the species, it would reduce the incentive for participation in a conservation plan.  The judge didn’t think that was a valid assumption.  The Forest Service seems determined to prove him wrong.

Under the 2012 Planning Rule, the Forest Service has the opportunity to help forestall the need to list species under ESA by identifying them as species of conservation concern and including protective plan components for them.  The wolverine received a positive 90-day finding that listing should be considered, but the FWS ultimately decided not to.   In response, the three forest plan revision efforts that are proceeding under the 2012 Rule and have wolverine habitat (Nez Perce-Clearwater, Flathead, Helena-Lewis & Clark) have determined that the wolverine should not be identified as a species of conservation concern.

The FWS will be looking for evidence their assumption was correct.  The lesser prairie chicken may have the Forest Service to thank when it eventually gets listed.  (And the wolverine, too.)

Creating the Next Generation of National Forest Plans

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I was going to call it “A New Century of Forest Planning,” but it looked like that was taken.  For those of you who were attracted to this blog by its original title, you may find this article useful.

Thanks to the Bolle Center for publishing it.  It seems appropriate that one of the students whom Dr. Bolle mentored in the early 70s can use the institution honoring him to critique the state of the law and policies he helped inspire – and hopefully continue his role of bringing attention to public lands management controversies.