Jon Haber

Court takes an interest in habitat connectivity – so should the Forest Service

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Connectivity is a new buzzword in the 2012 Planning Rule. It is part of the requirement for ecological integrity, but the Forest Service seems reluctant to fully embrace it in its early revision efforts under the new rule.

On June 25th, the Arizona District Court invalidated a Forest Service grazing permit on the Coconino National Forest because the U. S. Fish and Wildlife Service failed to consider effects on habitat connectivity in areas designated as critical habitat for the Chiricahua leopard frog. The judge held (in Center for Biological Diversity v. Branton):

Viable dispersal corridors are needed to ensure that the Buckskin Hills can sustain a functioning metapopulation: without them, CLFs would be unable to spread from one stock tank to another, and would be unable to recolonize a stock tank should its local population die out (record citations omitted). Accordingly, adverse modification of the dispersal corridors would “appreciably diminish the value” of (the critical habitat unit). In short, the 2013 BiOp’s failure to account for the maleffects of livestock grazing in dispersal corridors renders its conclusion that the Proposed Action “should not significantly reduce or modify” PCE 2b (record citation omitted) arbitrary and capricious.

This was a project decision involving a listed species and critical habitat. However, the principles of metapopulation dynamics it recognizes should be equally applicable to NFMA requirements that forest plan components provide ecological conditions necessary for viable populations.   This opinion suggests that, where connectivity is necessary for an at-risk species, and where information about the connectivity value of specific areas is available, their locations should be identified in the planning process and probably given special protection by plan components.

In this case, a requirement in the forest plan to apply specific conservation measures to dispersal corridors might have saved this project. Moreover, fixing this project would not prevent the same thing from happening on other projects. This suggests that the Forest Service should amend the plan (which would be subject to the 2012 Planning Rule requirements for viability), or at least reinitiate consultation on the forest plan on critical habitat for this species (based on new information about effects – but wait – this is the 10th Circuit, where that is not required.) What should the Forest Service do?

FYI – Here’s what Defenders of Wildlife thinks the Forest Service should do about connectivity in its forest plans.  (I suppose I should explain that I did the work on this document on a contract, and that I contribute to this blog on my own time, so that I am not intending to represent the views of Defenders of Wildlife here.)

Blue Mountains revision restart – FS stumbles out of the gate

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The three forest supervisors for the national forests in the Blue Mountains published a guest column with an invitation to meet with any and all interested parties as part of a “re-engagement strategy for the communities in the Blue Mountains.”  Unfortunately they also chose to make an off-script policy statement:

We want Forest Plans that provide resiliency for our communities in Eastern Oregon and Washington; Plans that support the local economy and the social values of the people who use and depend on them. We also want resiliency in ecosystems that can withstand: drought, floods, wildfire, invasive species, human impacts and have the strength to return to healthy ecosystems in the long run.

These plans are being developed under the 1982 planning regulations, but that does not excuse them from the agency policy on “resilience” (which I’m fairly sure is not found in the 1982 regulations).  In the 2012 Planning Rule, the term resilient/resilience is used only in the definitions of “restoration” and “viable population,” and the concept of “resilient ecosystems” (or “healthy ecosystems”) was replaced by “ecological integrity.”

Most importantly, the Planning Rule never uses the term “resiliency” in connection with social or economic factors.  It recognizes that forest plans can NOT “provide resiliency” for communities, and that this should not be used as a justification to support any particular local business or values.  Under the 2012 Rule, forest plans must “guide the plan area’s contribution to social and economic sustainability.”  And this is not limited to local interests, but instead explicitly extends to “the area influenced by the plan” and regional and national economies.

When you start by over-promising, there is a good chance you’re going to under-deliver (again).

Critique of forest collaboratives in Oregon

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The latest informal assessment gives them mixed reviews.

It lead me to take a quick look at the CEQ guidance for collaboration during NEPA (2007).  I don’t find that it makes a great case for collaboration between federal agencies and the public.  It is more directly aimed at interagency collaboration, where the authorities are more clear and positions more equal than those for the general public.

While the guidance suggests that the same principles could apply to the general public, its warnings for when to not collaborate seem likely to apply in the cases where we want to think of it as an alternative to litigation:

Parties have little motivation to collaborate if they believe they have better ways to achieve their interests. If a party believes it can achieve its goals through unilateral action, the courts, or the legislature, it might not be motivated to collaborate with others.

The specific situation the CEQ guidance applies to is “where an agency engages other governmental entities and/or a balanced set of affected and interested parties…”  Who gets to determine “balance” and based on what criteria?

I’d like to make a distinction (that CEQ didn’t make) between ‘collaborative groups’ and collaboration with such groups by the government.  The former would always be a good thing, and it would be reasonable for an agency to pay more attention in the NEPA process to (what it perceives as) a balanced collaborative group’s recommendations (for purpose and need, proposed action, alternatives that respond to environmental impacts, and even the preferred alternative) than for single-interest groups.  But for agency to give them preferential treatment, by collaborating with them, and not others, is asking for trouble (from NEPA and FACA at least). Some of the forest plan collaboration going on seems more like that.

 

Beaverhead-Deerlodge Forest Plan NEPA not site-specific enough

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The Ninth Circuit Court of Appeals reversed the decision in the Beaverhead-Deerlodge (B-D) National Forest’s revised forest plan to designate areas for use by winter motorized vehicles. It found that the forest plan EIS failed to provide analysis that was site-specific enough to make an informed decision, as required by NEPA, and that the planning process did not comply with the “minimization” requirements of Executive Order 11644 for off-road vehicles, including evaluation of specific areas open to motorized vehicles.

This was a rare loss at the forest plan level on a NEPA issue.  While courts often accept more general NEPA analysis for programmatic decisions, this court recognized that the essence of forest plans is land allocation decisions.  Here it was important to know where winter range was in order to consider how the plan affected it or to propose alternatives for it.  The court stated that, “Without data on the location of the big game winter range, the public was severely limited in its ability to participate in the decision-making process.”  This principle should be applicable to other wildlife issues in plan revisions.

The holding on motorized use may also be precedent-setting.  It found that the plan ‘designated’ ‘areas open to snowmobile use.’  That made it subject to the executive order and to the Travel Management Rule (TMR) the FS adopted to implement the executive order.  The court stated, “What is required is that the Forest Service document how it evaluated and applied the data on an area by-area basis with the objective of minimizing impacts as specified in the TMR.”  It held that the Forest Service had instead deferred that level of analysis to subsequent travel planning.  The B-D plan had more site-specific direction for motorized use than many plans would have, but this holding could arguably apply to any forest plan components that identify areas in which motorized use would be allowed (especially where it is already occurring without prior compliance with the TMR).  This opinion blurs the distinction between forest planning and travel planning that the Forest Service has tried to maintain.

Taking sides on restoration on the Mark Twain

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Here we have a timber sale controversy without either the timber industry or the ‘radical environmentalists.’  It just struck me as a good example of how the Forest Service can keep its eyes on the prize more easily, and fend off local public criticism, by having a relatively objective and measurable benchmark of ecological integrity to meet for a national forest (as established by the 2012 Planning Rule).

Late last year, the couple learned that the Forest Service has proposed returning 18,000 acres in the forest’s Cassville unit to pre-settlement conditions, a time when the forest was much more open and trees were spaced much farther apart, thinned by occasional fires, compared with the denser stands of timber in the area today.

To that end, the federal agency responsible for the 1.5 million-acre Mark Twain National Forest is proposing thinning the number of trees in an area known as Butler Hollow, removing invasive cedars and restoring glades and savannahs. The plan includes riparian plantings, prescribed burns, some for-profit timber sales as well as a technique called cut and leave.

But this is not a controversy that pits conservationists and environmentalists against public land managers. In fact, the project has the backing of several national groups including the Nature Conservancy, the American Bird Conservancy and the National Wild Turkey Federation.

Those three groups issued a joint position statement endorsing the project, which said the plan “employs science and sound conservation practices to provide direct benefits to people and nature.” Benefits, according to the advocates, would be a healthier forest ecosystem as well as timber to help support the local economy, and improved recreational opportunities.

“We are concerned that some recent criticism of the project is based on an assumption that the area was dense forest. Data show that the area was originally a far more diverse complex of woodlands and glades,” the statement reads.

But JoNell Corn says to return the forest to pre-settlement conditions is “not a proven science.” Corn has lived in Butler Hollow for 38 years, following in the footsteps of her ancestors, who put down roots here in the 1850s.

“I have spent hours visiting other project areas and have had people express to me that they are not concerned with what it looked like before settlers came, they just wish it would look like it did before the USFS started cutting and burning,” she said.

Missouri’s U.S. Sen. Roy Blunt is another skeptic. During an Appropriations Subcommittee on Interior, Environment and Related Agencies hearing this spring, he questioned U.S. Forest Service Chief Thomas Tidwell about plans for the Mark Twain National Forest.

“I don’t want to spend our time and effort here in doing things that won’t work,” said Blunt in the hearing, which was documented by video and can be seen online. “In theory with some of these burns, you’re trying to restore a landscape from a couple hundred years ago. Surely it’s worth a little time to see the science to whether that’s even possible or not and I’m just asking you to work harder with us.”

Do we need national ‘forests?’

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Things seem a little quiet out there, so here is my response to Sharon’s asking what I  think about “disappearing districts” on June 12.  The problem I see with the approach of consolidating districts (and national forests) is that is an ad hoc and opportunistic response, and I haven’t seen much of an effort at long-term strategic planning for what the current and future agency should look like.

I think there are some good arguments for maintaining a local ‘face’ of the Forest Service responsible for implementing policies and programs.  I think that could be done with many staff specialists located elsewhere and in different places.  Something close to a “one person ranger district” might make sense again.

On the other hand, what purpose do national forest administrative units serve?  There is a need for someone at a higher level and with a broader view to develop policies and programs.  But is there really a need for a hundred-and-how-many different sets of policies?  There is a historic and legislative basis for national forest boundaries, but I think that the decentralization of authority that has been tied to that works hard against the need to reduce government costs (as well as creating artificial cross-jurisdictional management problems).

 

I think that the Clinton Administration had the right idea that the Forest Service can’t afford four layers of bureaucracy.  What would happen if we eliminated national forest supervisor offices?  Or if that’s too many districts for a regional office to handle, a more reasonable alternative might be to reorganize based on states or multi-state units (like the BLM, which would make it easier to eventually merge with the BLM).  This might even improve working relationships with the states.

 

 

Sage grouse plans are out

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Here are national and state perspectives.

 

The proposals to amend federal BLM and Forest Service plans to protect sage grouse have been released. I haven’t read the new plan components but I have followed the process since I was peripherally involved before I retired from the FS, and I was also more heavily involved in developing similar strategies for bull trout, lynx and grizzly bears. This is the way conservation planning on federal lands should be done – but BEFORE it gets to the point of possible listing and this kind of crisis management.

 

It would be nice to see this happening now in the forest plan revision process for species of conservation concern (for which a regional forester has found “substantial concern about a species’ capability to persist over the long-term in the plan area”). Instead of consistent conservation strategies being developed (based on ecosystem and/or species-specific plan components) we see species like wolverine, which recently barely (and maybe temporarily) dodged listing, not even being identified as a species of conservation concern in the Idaho and Montana plans that are being revised.   There doesn’t seem to be a learning process here.

 

But the states are worse. They’ve had jurisdiction over sage grouse for the last century or two, and we’ve seen what results. It’s pretty laughable for them to now say the feds should follow state plans for sage grouse.

 

This is just flat out wrong,” Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said of the plan. “If the Administration really cares about the bird they will adopt the state plans as they originally said they would. The state plans work. This proposal is only about controlling land, not saving the bird.”

 

Are the states trying to save the bird, or do they just see this as another opportunity to exert their control on federal lands?

 

Advice for the Tongass young-growth plan amendment

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Though some doubted it could be done, the group of industry leaders, scientists, conservationists and government representatives has reached a consensus: the Tongass Advisory Committee has submitted its draft recommendations for managing timber harvests in the national forest that covers much of Southeast Alaska.

There are lots of interesting ideas here; maybe some becoming relevant beyond Alaska as the Forest Service gets out of the old-growth business everywhere.  Here’s one that surprised me:

It asks for changes in leadership, with more power given to regional foresters.  “This runs counter to the current culture in which District Rangers, in order to be safe and not take any risk, simply layer on Interdisciplinary Team suggestions for protection, without paying attention to redundancies,” the draft reads, “lead(ing) to a collision of restrictions that result in low volume and non-economic projects … or extinguishes projects altogether.”

It’s also counter the culture of decentralization.  It seems to be a proposal to take more risks, which I would expect to lead to more litigation.  On the other hand, I got the impression over the years that those at higher levels understood the risks better and were less likely to take them.  But then they are closer to the politicians, too.  (Maybe there’s some other perceptions out there.)