Jon Haber

How the sue and settle process really works

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This 6-page opinion includes a discussion of how courts decide whether to approve a consent decree.

The case also demonstrates the ability of intervenors to influence the outcome.  In this case environmental groups intervened in a lawsuit by motorized users over a travel plan decision.  Because of the intervenors, the court refused to approve the part of the consent decree that would have vacated that travel plan and allowed motorized use to continue while the Forest Service reconsidered the travel plan.  The intervenors kept the plaintiffs from getting what they really wanted.  (But the plaintiffs or the Forest Service could now reject the consent decree and continue the lawsuit.)

The court poses a hypothetical at the end:  “This analysis would change, however, if upon reconsideration the Forest Service finds flaws in the 2011 Travel Plan requiring changes. At that point, a strong argument could be made that the Plan cannot remain intact and should be vacated, reinstating the 1987 Forest Plan management scheme.”  The problem with this result would be that this travel plan is necessary to accomplish the 1987 forest plan direction to protect wilderness character, and reverting to the no-action alternative would be inconsistent with the forest plan.  That creates an equally strong argument the other way (in my opinion).

The Forest Service: Fighting climate change since 1974

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(In memory of the Keystone Pipeline)

As you know, the Senate recently voted to acknowledge that climate change is real.  In this story,  one senator called it ‘a step forward’ for Republicans.  What is most remarkable is that they must have been marching backwards since a much wiser Congress passed the Forest and Rangeland Renewable Resources Planning Act in 1974.  That law, recognizing “the necessity for a long term perspective in planning and undertaking related national renewable resource programs administered by the Forest Service,” required that the Secretary of Agriculture prepare a periodic renewable resource assessment that must include “an analysis of the rural and urban forestry opportunities to mitigate the buildup of atmospheric carbon dioxide and reduce the risk of global climate change.”  (Draw your own conclusions – here.)

Why aren’t forest plan goals accomplished?

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Terry Seyden offered this on another thread, but I’d like to hear some other opinions, or better yet, facts.

“The principal reasons most forests are not anywhere near meeting their forest plan timber and wildlife habitat goals, in my opinion, lie in the fact that congress funds targets at levels well below what the plans call for.”

If someone can explain “why” – how the process of getting from forest plan timber numbers to annual targets actually works, please share!  And how is that process different for wildlife habitat goals?

Forests for whom and for what?

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With apologies to Marion Clawson (the year before NFMA), but we’re still asking that question.

Secure Rural Schools meets forest planning on the Mark Twain.  This is a real example of the reasons why Congress has tried to break the connection between commercial use of national forests and revenues to local governments.

The commission would like to see the management plan changed to allow an increased timber harvest. This would bring in more money for the county’s schools and Road and Bridge Fund. 

“The preservationist mindset at the national forest is hurting our communities,” says Skiles. “We need to ask who the forests belong to, and ensure that they are a multiuse asset for our country.”

We welcome the public’s input,” says Salem Forest Service District Ranger Thom Haines. “We are not revising our management plan yet, but it will be coming up. When we do, we will engage with the public and our leaders to determine the best plan forward.”

A reform of the forest management plan will no doubt stir up another local debate, and concern is already growing over the viability of industrializing the national forest.

“We have to deal with the market,” says Haines. “It’s not as simple as cutting more trees. The counties do get a 25 percent cut of timber sales, but there is a lot of wood harvested now which doesn’t sell. The counties will only get that money if the wood is sold, and if it doesn’t sell quickly, that wood will rot and then it will not be worth anything.”

Among the other issues that will have to be confronted with an increase in logging are; cheaper foreign wood entering the US market, fluctuating wood prices, and the lower quality of timber coming from the Ozarks in comparison to areas with richer soil, better climates and older growth forests.

“We are not a preservationist organization,” says Haines. “The forest service exists to benefit local communities in many ways, including economically. But as Gifford Pinchot once said, we are here to do the greatest good, for the greatest number of people, for the greatest amount of time. That means conservation. What we have to ask ourselves is what conservation means for us today, and for future generations.”

Maybe the Forest Service was too subtle with its suggestion that “the greatest number” part puts the local county’s financial needs in the proper perspective.  At least they are now asking Clawson’s question through the planning process he probably contributed to creating.

New possible planning tool for the birds

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The study analyzed 308 species of birds that live on lands managed by the Bureau of Land Management and U.S. Forest Service, the two largest public land managers in the western United States. Drawing on 1.7 million crowdsourced checklists submitted to the Cornell Lab’s eBird project, the researchers modeled where each species occurred in each week of the year across the nation. They then overlaid those results on a map of land management compiled by Jocelyn Aycrigg of the National Gap Analysis Program at the University of Idaho, a coauthor of the study. The map showed not only which lands were managed by the agencies, but what levels of formal biodiversity protection the lands had.

“It can get overwhelming thinking you need to do everything for every bird,” said Ken Rosenberg, a conservation scientist at the Cornell Lab and coauthor of the study. “This can really help hone in on what’s important for your piece of land—so you know what are the main species you can concentrate on.”

The study’s focus on so-called multiple-use lands (places that are neither set aside as wilderness nor completely open to development) highlights a strategic opportunity for conservation, Rosenberg said. It’s difficult to set aside new parcels of land, but adjusting priorities on existing lands can have a huge positive effect.

Read more at: http://phys.org/news/2015-01-bird-watchers-federal-agencies-priorities.html#jCp

This sounds like some good science the Forest Service should use to meet the viability requirements of the new planning rule where the Forest Service can not maintain a viable population of species in a plan area:

“… the responsible official shall:  (ii) Include plan components, including standards or guidelines, to maintain or restore ecological conditions within the plan area to contribute to maintaining a viable population of the species within its range. In providing such plan components, the responsible official shall coordinate to the extent practicable with other Federal, State, Tribal, and private land managers having management authority over lands relevant to that population. (36 CFR 219.(b)(2))

 

 

California’s Forests: Where Have All the Big Trees Gone?

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“The number of trees larger than two feet in diameter has declined by 50 percent on more than 46,000 square miles of California forests, the new study finds.”

“But in comparing a census of California forests done in the 1920s and 1930s with another survey between 2001 and 2010, McIntyre and his colleagues documented a widespread demise of big trees that was evident even in wildlands protected from logging or development.  The loss of big trees was greatest in areas where trees had suffered the greatest water deficit.”

If nothing else, this supports a policy of not killing the survivors.

Final policy for managing over-snow vehicle use

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Let winter travel planning begin.  Not something the Forest Service wanted to do, but the result of a court decision that found the Forest Service incorrectly exempted snowmobiles from the travel planning regulations.  Here is the new regulation and a news article.

Over-snow vehicle use on National Forest System roads, on National Forest System trails, and in areas on National Forest System lands shall be designated by the Responsible Official …

After National Forest System roads, National Forest System trails, and areas on National Forest System lands have been designated for over-snow vehicle use pursuant to 36 CFR 212.81 on an administrative unit or a Ranger District of the National Forest System, and these designations have been identified on an over-snow vehicle use map, it is prohibited to possess or operate an over-snow vehicle on National Forest System lands in that administrative unit or Ranger District other than in accordance with those designations…

This will require analysis of effects of allowing over-snow use in places where that hasn’t been through a NEPA or ESA process.

And let the collaboration begin:

Chad Sluder, president of the Sawtooth Snowmobile Club based in the central Idaho town of Bellevue, said his club of 75 members would take an active part in that process.  “We don’t want to lose any more ground, and if it comes to that we will fight it to the end,” Sluder said. “It’s the ongoing battle between the skiers and snowmobilers. They don’t want us there and we have every right to be there.”

Off course, even Wilderness boundaries don’t seem to make a difference (see article).

U.S. Forest Service law enforcement officers caught nine snowmobilers illegally riding in two separate wilderness areas recently.

 

Collaborating with the enemy

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This story reminded me of that use of this term:

The County Commission passed a resolution officially requesting the forest service immediately cease actions it has been taking since 2013 pertaining to grazing on Dixie National Forest.

The forest service actions protested include the gathering of data, conducting studies and preparing reports without the county’s involvement. The resolution further protests a cooperative relationship the forest service has engaged in with Grand Canyon Trust Inc., which the commission and the Utah Association of Counties maintain constitutes an improper relationship with nongovernmental organizations, or NGOs.

In its resolution, the County Commission “respectfully requests” the forest service discard any data, studies and reports prepared without notice and involvement of the county since 2013 and that the service coordinate with Washington County in any future action from the outset.

An undated letter from Mark Ward, senior policy analyst and general counsel for the Utah Association of Counties, (responding to an Aug. 18, 2014, forest action), supports and is made a part of Washington County’s resolution. In his closing, Ward wrote to the supervisors of Dixie National, Fishlake and Manti-LeSal forests, all affected by the Aug. 18 action:  ‘Forest Service should scrap the FS Initial Review, start over and next time, integrate NEPA (National Environmental Policy Act) into the process. After all, it is the stated policy of Forest Service to ‘fully integrate NEPA requirements into agency planning and decision-making,’ … and ‘apply (NEPA procedures) to the fullest extent practicable to analyses and documentation of Forest Service actions …’

NEPA doesn’t apply until you have an ‘action’ to propose, and the NEPA process is supposed to encourage review of the data used in evaluating the action (regardless of its source).  The cash-starved government is always looking for help in collecting data.  Is there a problem with this approach?