Looks like the “Conservation and Landscape Health” CLH rule will be out soon.
Here’s a screenshot of the FS section:
Looks like MOG is not on the list for now. Many of these are unknown to me… if any of you are familiar with them or have links to reporting, please put in the comments (that’s also true for the BLM regs other than the CLH reg.
This one is free…if anyone’s interesting in attending all of parts and writing it up for The Smokey Wire, it would be greatly appreciated.
The second workshop of Wyoming Governor Mark Gordon’s WGA Chair initiative, Decarbonizing the West, will be held in Boise, Idaho, on December 12 and 13.
The two-day workshop will focus on topics related to natural carbon sequestration, including agriculture, forestry, and land management. It will feature roundtable discussions with carbon capture experts from around the region, including the Idaho National Laboratory, as well as remarks from Governor Gordon and Idaho Governor Brad Little.
View the agenda below and register here to watch a FREE livestream of the event.
You can also watch recordings of the first Decarbonizing the West initiative workshop, which explored the potential of carbon capture, utilization, and storage technologies, here.
Digesters can significantly mitigate greenhouse gas emissions from livestock production by capturing methane that would otherwise be released from manure. The resulting biogas can be used to meet on-farm energy needs or sold on the market. This panel will explore the opportunities, challenges, and benefits for biogas recovery and how digester systems can contribute to overall emissions reduction in the agricultural sector.
Panelists: Andre Brasil, Senior Director, Business Development, California BioEnergy LLC; John Olshefski, Ingevity; and Jesse Burson, Supply Development Lead, Renewable Natural Gas, Shell.
Moderated by: Rick Naerebout, Chief Executive Officer, Idaho Dairymen’s Association
Increasing adoption rates of climate-aware practices is one of the most effective ways to reduce the effects of carbon emissions from the agriculture sector. Incentivizing new practices, compensating producers for less-efficient yields, and building demand for agriculture-based carbon markets are a few of the approaches to accelerate adoption by producers.
Panelists: Bill Jaeger, Strategic Initiatives Officer, LOR Foundation; Myles Gray, Program Director, U.S. Biochar Initiative; and Tony Schoonen, Chief Executive Officer, Boone and Crocket Club.
Moderated By: Kirsten Boysen, Managing Director, Colorado Department of Agriculture, Drought and Climate Office
2:55 – 3:50 p.m. Roundtable 3: Decarbonizing through Integrated Energy Systems
Idaho National Laboratory’s Integrated Energy Systems Program, supported by the Department of Energy’s Office of Nuclear Energy, conducts research, development, and deployment activities to expand the role of nuclear energy beyond the grid for various industrial, transportation, and energy storage applications. INL’s work on integrated energy systems and other research areas such as biomass, hydrogen, ammonia, and nuclear for heat and electricity generation can enhance utilization of low or non-emitting energy generation, bolster grid resiliency, and help achieve clean energy economy goals. The panel will discuss various decarbonization pathways and provide insights on the techno-economic and socio-economic effects of deployment on the energy economy.
Panelists: Eric Dufek, Department Manager, Energy Storage & Electric Transportation Department; Seth Snyder, Program Director, Energy, Environment Science and Technology; David Thompson, Chief Scientist, Bioenergy, Ning Kang, Department Manager, Power and Energy Systems; and Ning Kang, Department Manager, Power and Energy Systems.
Moderated by: Todd Combs, Associate Laboratory Director
4:00 – 4:55 p.m.: Roundtable 4: Carbon Storage in Mass Timber
Forests are excellent at sequestering carbon into biomass, but less effective at retaining carbon over long timescales. Stabilizing forest carbon within long-lived building materials presents a powerful opportunity to not only mitigate carbon emissions from wildfires and decomposition, but also to defray the costs of forest health treatments. Achieving these dual benefits requires growing both the supply chains for mass timber products as well as the markets for utilizing them. This panel will examine strategies for expanding mass timber utilization and its benefits for forest restoration economics and natural carbon sequestration.
Panelists:Jennifer Okerlund, Director, Idaho Forest Products Commission; Bill Parsons, Chief Operating Officer, WoodWorks – Wood Product Council; and Julie Kies, U.S. Forest Service, Wood Innovations Program Manager.
Moderated by: Rachael Jamison, Vice President, Markets and Sustainability, American Wood Council
5:00 p.m.: Adjourn
December 13
8:30 a.m.: Decarbonizing the West Initiative Remarks
Forests and grasslands sequester about 14 percent of the United States’ carbon emissions and represent one of the largest opportunities for large-scale carbon removal. Management actions can be strategically selected to optimize carbon sequestration and storage while meeting other management objectives. This is a delicate balancing act, however, that increases the potential for unintentional outcomes. The panel will examine the nuances of carbon stewardship and the potential benefits of carbon optimization projects on forests and rangelands.
Panelists: Matt DiBona, District Biologist, National Wild Turkey Federation; Jim Elbin, Trust Lands Division Administrator, Idaho Department of Lands; and Katharyn Duffy, Director of Science Operations, Vibrant Planet
Moderated by: Todd Ontl, Climate Adaptation Specialist, U.S. Forest Service.
Voluntary carbon markets have emerged as a dynamic and evolving method of reducing carbon emissions. These markets allow businesses, organizations, and individuals to take proactive steps to reduce their carbon footprint. Carbon markets can drive innovation, support sustainable projects, and promote environmental stewardship. In recent years, these markets have expanded, presenting both challenges and opportunities to meet carbon reduction goals. This panel will explore the potential pitfalls and opportunities to support broader carbon dioxide reduction activities through voluntary carbon markets.
Panelists: Brian DiMarino, Head of Operational Sustainability, JP Morgan Chase; Spencer Plumb, Senior Manager, Forest Market Innovation, Verra; and Matt Bright, Director of External Affairs, CarbonCapture Inc.
Healthy forests are a prerequisite for natural carbon sequestration, but funding can be a limiting factor for forest restoration or afforestation projects. Innovative strategies for providing forestry assistance have demonstrated that unconventional approaches can yield significant carbon sequestration benefits. Instead of relying exclusively on public resources, these strategies leverage a mixture of funding sources, technical assistance, and other resources to support forest health and carbon sequestration. In this panel, participants will discuss how innovative finance mechanisms and partnerships can catalyze investment in natural climate solutions.
Panelists:Mary Mitsos, President and CEO, National Forest Foundation; Luke Hawbaker, Director of Business Development and Partnerships, Mast Reforestation; and Jill Ozarski, Program Officer, Environment, Walton Family Foundation.
Moderated By: John Oppenheimer, Government Relations Director, Idaho Conservation League
There are many new readers to TSW, so I will tell this story again. After I retired from the Forest Service, I spent a few months working as the Catholic Channel administrator for a for-profit company called Patheos. My job was to post snippets of blogs written by our writers . As part of that job, we had training that it was important to tie the blog topics to current events, even if it was quite a stretch, so that they would get more clicks and hence revenue.
Well, we definitely see that with the COP.. there’s been a plethora of what I call COPaganda and COProphilia. I see that as the context for this Interior Department press release. I have to wonder about 70K people traveling using fossil fuels, to a meeting in a country that produces fossil fuels, to decry fossil fuels.
The announcement comes as Assistant Secretary for Fish and Wildlife and Parks Shannon Estenoz wraps up her trip to the 28th Conference of the Parties (COP28) in Dubai,
I wonder how many people the US Government sent to this meeting from how many different departments and agencies?
Anyway, the Department is going to go with “nature-based solutions”:
“Investing in nature is investing in ourselves. By employing nature-based solutions, land managers and decision makers can restore and sustain healthy ecosystems that in turn support healthy communities and economies,” said Assistant Secretary Estenoz.
Nature-based solutions use or mimic natural features or processes to improve biodiversity, strengthen resilience for disaster and hazard-risk management, support climate adaptation, and address carbon management to offset greenhouse gas emissions, while also benefitting both people and nature. These can include green infrastructure, natural infrastructure, and natural climate solutions.
The Department today also announced a new policy that will strengthen the Department’s ability to meet its mission in the face of a changing climate by prioritizing nature-based solutions across bureaus and offices. The policy will provide land managers and decision makers with guidance on using nature-based climate solutions, and will center collaborative partnerships, equity, environmental justice, and the use of the best available evidence. This new policy compliments the announcement in September 2023 of new policies to strengthen climate adaptation and resilience efforts, including the first-ever effort to factor the climate crisis into all operations.
The Department is prioritizing high return nature-based investments that connect lands and waters, promote cross-bureau collaboration, and leverage partnerships. By implementing these innovative strategies, our efforts also aim to ensure climate security, improve equity and address environmental justice, incorporate Indigenous Knowledge into decision making, and apply evidence-based scientific approaches to predict, monitor, and assess implementation effectiveness.
It sounds like all the great things that they were already doing, but now they are “innovative strategies”.
Now some of us have been through “sustainability” and the Montreal Process; “ecosystem health”; biodiversity; ecosystem management, ecosystem services, ecological integrity, climate resilience and probably other abstractions over time. In my paid career, each one of these had their own cadre of experts, and we would attend meetings and listen to them. At the end of the day, though, for federal land management agencies (and noted that Interior does many other useful things), we are discussing the exact same things that we were 50 years ago- grazing, the timber industry, how to manage wildfires, infrastructure projects (renewable or other energy, transmission) and mining. We have a mass of interlocking disciplines that work with each of these kinds of uses- wildlife biologists, fisheries folks, hydrologists, foresters, fuels folks, economists, social scientists, NEPA practitioners and so on.
I’m a bit leery of the USG going to outside sources (including NGOs and universities) when they usually have more experts in-house, but OK, let’s look at the forest section. I think, to be fair, that the NBS idea makes more sense for riparian and coastal management; maybe it’s just same-old for forests.
********** Forest restoration is the process of returning a forest to its healthy state; this can include a variety of actions such as prescribed burns, reforestation, controlling invasive species, and pruning competing underbrush (American Forests 2023). Forest conservation as a management practice is the maintenance of forested areas for both people and the environment. Both
conservation and restoration are essential to forest management (Pawar and Rothkar, 2015).
TECHNICAL APPROACH
Forest conservation and restoration approaches vary based on the goals of the particular manager or management agency. Goals typically include both ecosystem and socioeconomic outcomes (Stanturf et al. 2017). When considering forest conservation and restoration, it is crucial to evaluate the trade-offs of timber production and ecosystem values (University of Cambridge 2022). Some primary forest conservation and restoration methods are as follows:
• Fuels management: Fuels management is a priority for many forests as a method to mitigate the harmful effects of wildfires, invasive species, and other disturbances. Within forests, fuels management often consists of prescribed burning and mechanical thinning (USFS 2021).
• Reforestation: Reforestation is one of the main practices for forest restoration.
There are three main reforestation methods: natural regeneration, assisted natural regeneration, and planting (USFS 2022).
• Natural regeneration: Natural regeneration allows regrowth to occur naturally. Depending on the project, natural regeneration can provide the most cost-effective reforestation method. It is essential to be aware of the species that will likely grow in these areas to ensure they will meet project goals (Chazdon 2017).
• Assisted natural regeneration (ANR): ANR is a method requiring less labor and funding than planting, but aims to accelerate a forest’s natural regeneration process. ANR can be achieved by improving soil, removing competing species, and mitigating disturbances (Ciccarese et al. 2012).
• Planting: Some forest restoration projects require systematic planting of native species, with the best results coming from species-diverse planting projects (Ciccarese et al. 2012).
• Controlling invasive species: Another crucial management approach to forest restoration is invasive species management, including prevention, early detection and rapid response, long-term control, and monitoring. In long-term, large-scale forest conservation and restoration projects, prioritization is critical to ensure cost-effective management. Native tree species resistant to invasive pests can be planted to aid in stand reestablishment (NPS 2022).
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Here are some forest examples (I circled the lessons learned that I thought we already knew, plus the AS duration is perhaps incorrect (if not, please let us know more!):
So I guess they are saying that all these things (BAU) can be put under the new umbrella of “nature-based solutions.”
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Several barriers are common across many of the nature-based solutions strategies; these are described in more detail in Section 1 of the Roadmap. Additional notes about the barriers specific to forest conservation and restoration are included here.
• Expense: Lack of funding is the primary obstacle forest restoration practitioners report (Cook-Patton et al. 2020). Forest restoration costs on a landscape-scale level can be in the billions of dollars. While the economic investment is high, forest conservation and restoration should be considered socioeconomic and environmental investments for the future (Wu et al. 2011).
• Capacity: Certain methods of forest restoration have high labor requirements, which can be a constraint in implementing these projects (Ciccarese et al. 2012).
• Public opinion: Public support is crucial for forest conservation and restoration on public lands. It is important to educate about the importance of the conservation and restoration work (USFS 2012).
• Conflict with other land uses: Forest land conversion is one of the primary causes of forest loss. This land is typically converted into development or agriculture. With the growing population, deforestation is estimated to exceed 50 million ac by 2050. Forest land conversion has lasting socioeconomic and ecological effects, and it is important to find integrated ways to sustain the growing population while still prioritizing forest conservation and restoration (Alig et al.)
• Regulation: Forest restoration projects can be delayed by regulatory requirementssuch as fulfilling National Environmental Policy Act (NEPA) and endangered species consultation requirements. However, in some cases, categorical exclusions can exempt a particular project from NEPA requirements (Fretwell and Wood 2021).
Community
• Legal and administrative constraints: Forest restoration is not currently occurring at the desired rate, often because of funding, legal, and organizational constraints and barriers (Jones et al. 2021).
• Species-poor plantations: Forest conservation and restoration may create singlespecies tree plantations, which do not provide the same ecological benefits as speciesdiverse forests (Aerts and Honnay 2011).
There seem to be at least three different views of what should be done with endangered species. 1. Recover the species in a specific area; 2. Recover the species everywhere it ever was and 3. Manage for the species in areas where it currently isn’t, but might possibly go under climate change. It’s all a bit confusing to some of us as to what is legally required by ESA and what is just the druthers of some folks.
Oregon Wolves To Be Released in Colorado: Location Unknown
Yes, Colorado already had wolves who wandered down on their own from Wyoming. However a ballot initiative requires them to be reintroduced anyway (political reasons). Here’s a nice article in the Colorado Sun.
The wolves headed to Colorado currently live in Oregon. Once they’re captured, the volunteer flight service LightHawk, which assists conservation agencies with endangered species transportation, will bring them to Colorado.
Western Slope ranchers could start seeing wolves by mid-December. That troubles Lenny Klinglesmith, who runs between 600 and 1,000 head of cattle in Rio Blanco County, southwest of Meeker.
Klinglesmith said stress and anxiety are running high in him and his ranching neighbors, who’ve “been dreading it for quite awhile. Now, reintroduction is almost here but we don’t have a choice. It’s just the stress, not only for me but for our hunting community. They talk deterrents and conflict minimization like it’s easy, but wolves are there 24 hours a day, 365 days a year. And most [impacts] are going to happen in the middle of the night. It could be Christmas Eve. It’ll change lives forever.”
But Eric Odell, CPW’s species conservation manager, said CPW plans to help them with the transition by contracting a conflict minimization specialist with expertise in wolf reintroduction who has worked with several ranching communities in the past. The agency intends to hire more such specialists. And Odell said CPW has some of the materials needed for deterring wolves on hand, including “fladry” to string around livestock pastures or holding areas, and scare devices like sirens and strobe lights.
“We have some for loan and use, but not enough that will meet the demand,” he said. “And there will be lots and lots of demand.”
It seems to me like the wolves came in on their own, and people were adjusting. Then came the “reintroduction” effort-voted for by people who live elsewhere and only narrowly passed at all. I don’t think if a person’s goal was to help heal any urban rural divide, that this effort is helping. Just my two cents.
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Wolverines
This is from the Center for Western Priorities newsletter.
Human-driven climate change has led to the species’ decline, with the most recent estimates noting a population of around 300 in the Lower 48. Wolverines rely on deep snow through the late spring to build dens, but in recent decades, snowpack has been decreasing. The species used to roam from the northern United States to New Mexico, but now they exist only in small populations in the Rocky and Cascade mountains.
“The science is clear: snowpack-dependent species like the wolverine are facing an increasingly uncertain future under a warming climate,” Michael Saul, Defenders of Wildlife Rockies and plains program director, told National Parks Traveler. “Now it’s time to support the species’ future by bringing them back to the mountains of Colorado as well.”
I’m wondering why they would pick the most southern part of the range specifically to bring them back, the part conceivably least able to support them based on the warming climate.
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Grizzly Bears Translocation to Add Genetic Diversity
To me if the yellow lines were the target, it seems like the grizzlies are doing fairly well.
“We’re trying to demonstrate to everybody, the courts included, that connectivity isn’t an issue that should impede delisting,” said Ken McDonald, wildlife division chief for Montana Fish, Wildlife and Parks. “Until it’s happening regularly, naturally, we can cover this with human-assisted movements.”
The two grizzly bear populations aren’t far from each other — the leading edges are just 35 miles apart — but there’s never been a documented case of a Northern Continental Divide Ecosystem grizzly traveling to the Yellowstone Ecosystem and procreating. Grizzlies have gone the other direction, trekking north well into Montana, but that doesn’t accomplish the goal of creating gene flow into the isolated population.
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Although state wildlife managers have committed to translocating grizzlies into the Greater Yellowstone Ecosystem, the current level of genetic diversity is not “in dire straits,” Interagency Grizzly Bear Study Team Leader Frank van Manen said.
Frank van Manen, leader of the Interagency Grizzly Bear Study Team, at the Interagency Grizzly Bear Committee’s Yellowstone Ecosystem Subcommittee meeting in Cody in May 2023. (Mike Koshmrl/WyoFile)
“We have a little bit lower genetic diversity than other populations, but it’s not declining further,” he said. “It’s moderate genetic diversity, is how I would classify it.”
The genetic augmentation appendix of Montana’s draft grizzly bear management plan calls the ecosystem’s genetic isolation a “long-term conservation concern.”
“The rate of inbreeding has been very low (0.2% over 25 years),” the document states, “and no inbreeding effects have been detected.”
As a geneticist, I would say “if it’s low and not decreasing, it’s not a problem.”
Nevertheless, U.S. District Court Judge Dana Christensen sided with environmental groups in 2018 on the question of genetic diversity, ending a short stint where the Northern Rockies states had jurisdiction over their Ursus arctos horribilis populations.
I went to the link above and this is what the Judge said:
In ordering the re-listing, the judge noted that delisting Yellowstone-area grizzlies might have an impact on other grizzly populations. But he also found threats to the Yellowstone-area bear itself. One worry is that the geographically isolated Yellowstone population may lack the genetic diversity necessary to persist.
The judge, over many pages in his order, mulled arguments about minimum populations, effective population sizes and other important factors, including federal law. He criticized federal scientists for “failing to recognize that all evidence suggests that the long-term viability of the Greater Yellowstone grizzly is far less certain absent new genetic material.
“Despite its recognition that continued isolation poses a threat to the Yellowstone grizzly, there is no regulatory mechanism in place to address the threat,” the judge wrote.
When the Fish and Wildlife Service decided in 2017 to delist the Yellowstone grizzly, the decision that prompted the successful lawsuit, it “misread the scientific studies it relied upon,” Christensen wrote.
“The Service failed to logically support its conclusion that the current Greater Yellowstone population is not threatened by its isolation.” The judge wrote. “The Service has failed to demonstrate that genetic diversity within the Greater Yellowstone Ecosystem, long-recognized as a threat to the Greater Yellowstone grizzly’s continued survival, has become a non-issue.”
So it appears that the Judge is not talking about the actual science, but the FWS not “logically supporting its conclusion.”
Sommers recalls something that Chris Servheen, the former lead government grizzly scientist, once told him. “We also have to remember bears have been isolated on Kodiak Island for 10,000 years and they’re doing just fine, ” Sommers paraphrased.
Alaska’s Kodiak population differs from Yellowstone in that there are about 3,500 Kodiak brown bears. (Many refer to both species as grizzlies, though they are slightly different.)
“How good is the science on the genetics issue,” Sommers asked, saying conservationists call to preserve natural migration corridors between the grizzly recovery zones in the Lower 48 “are just attempts to tie up policy [regarding] land use.
“I think this genetic connectivity issue is a red herring that underlies some groups’ efforts to try to manage, manipulate this larger landscape with regard to how they want to see [land-use] decision on the ground,” he said.
Thanks to Tim at the Hotshot Wakeup for pointing out this project.
Here’s the link to the project documents. The EA is 60 pages, including five pages of response to comments. The draft EA was released on August 14 2023, and the final DN and FONSI on October 30, 2023. There were two fires involved, Hermits Peak Calf Canyon in 2022, and the Luna Fire in 2020. Acreage and time for the project: 24,420 acres over the next 1-10 years or until completed.
Some interesting things about it:
* Speed- draft EA out in one year.
* Tiers to FEMA programmatic.
* Uses emergency authorities so no objection process (helped with speed).
* As far as I have been able to ascertain, the woody material is being given to local not-for-profits or governments to distribute. There are no sawmills in the area.
Here’s the clause in the DN about objections:
“The Hermits Peak Calf Canyon and Luna Post-Fire Recovery Project has been approved by Forest Service Chief Randy Moore for use of the Emergency Authority Determination under Section 40807 of the Infrastructure Investment and Jobs Act of 2021 (Public Law 117-58 Nov. 15, 2021 ). Under section D in this authority,
An authorized emergency action carried out under this section shall not be subject to objection under the predecisional administrative review processes established under section 105 of the Healthy Forests Restoration Act of 2003 (] 6 U.S. C 6515) and section 428 of the Department of lnterio,; Environmental, and Related Agencies Appropriations Act, 2012 (16 USC 6515 note; Public Law 112-74).”
Here’s the project description:
“The Proposed Action provides the opportunity to implement a suite of restoration activities on approximately 24,420 acres over the next 1-10 years or until completed, as part of the Hermits Peak Calf Canyon integrated response and recovery approach to the current disaster and to possible future events associated with FEMA-4652-DR-NM. The “Proposed Action” section of the EA lists four items that the decision incorporates. Per the Final EA “Purpose and Need” section, implementation of the project as analyzed includes:
• Aerial re-seeding
• Re-forestation
• Ground-based material removal
o Using ground-based equipment on steep slopes
o Removal using conventional ground-based equipment
o Personal fuelwood
o Temporary road use on 58.1 miles, with decommissioning of these routes after
project completion
o Treatment of slash, including pile burning
• Recreation site stabilization
• Other recovery efforts, after assessments have been completed within the Hermits Peak Calf Canyon Fire portion of the project area:
o Noxious weed abatement (treatments approved in the Final Environmental Impact Statement for the Invasive Plant Control Project. Carson National Forest and Santa Fe National Forest (USDA 2005),
o Restoration and reforestation of fire-adapted vegetation types,
o Restoration of riparian areas,
o Post-wildfire hillslope stabilization treatments, including aerial seeding,
o Post-wildfire channel treatments,
o Post-wildfire road, culvert, and trail flow diversion treatments,
o Post-wildfire ash, sediment, and debris removal and infrastructure repairs,
o Structure demolition, relocation, or alteration, and
o Hydraulic capacity improvements and protection of water infrastructure.
Based on the resource specialists’ analysis/reports, as summarized within the EA, and tiering to FEMA Programmatic Environmental Assessment for the State of New Mexico Watershed Resiliency and Post-Wildfire Treatment Projects, the implementation of the Proposed Action and associated activities (including design features) can be implemented such that the proposed project will not result in a significant impact. This determination is based on the following:
• How well the selected alternative achieves the need.
• How well the selected alternative protects the environment and addresses issues and concerns.
• How well the selected alternative complies with relevant policies, laws, and regulations.
My decision to implement the Proposed Action is based on how well the alternative responded to the purpose and need and public comments received during the public involvement process. My decision facilitates the need to address recovery actions, particularly for the Hermits Peak Calf Canyon Fire as part of the integrated response for this emergency while also addressing vegetation recovery needed within these burned areas. My decision best meets the purpose and need to aid in recovery efforts, while complying with applicable laws and regulations and addressing the public’s concerns. In making this decision, we thoroughly considered issues and comments identified during scoping and from the public during the 30-day Draft EA comment period. Our decision balances public concerns and the need to restore and participate in integrated recovery efforts.”
Thanks to Nick Smith for this one, from the Capital Press.
Two environmental groups must pay about $4,600 of the U.S. government’s litigation expenses following the dismissal of their lawsuit against commercial thinning in southeastern Oregon.
A federal judge has ordered Oregon Wild and Wildearth Guardians to compensate the U.S. Forest Service for the cost of processing paperwork related to three disputed projects in the Fremont-Winema National Forest.
The environmental plaintiffs claimed the $4,655.80 bill would discourage similar “public interest” lawsuits in the future.
However, U.S. District Judge Michael McShane disagreed, ruling they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions.
The judge also said the lawsuit wasn’t of such extraordinary importance that the U.S. Forest Service should be barred from recovering its costs as the prevailing party.
“The court will not allow plaintiffs to hide behind the subject matter of the litigation they initiated to avoid costs Congress intended them to pay” under federal law and court rules, McShane said.
Last year, the plaintiffs filed a complaint alleging the government’s plan to commercially thin 29,000 acres under the three projects was too expansive to “categorically exclude” from environmental review.
In August, however, the judge ruled such analysis wasn’t legally required for the South Warner, Bear Wallow and Baby Bear projects under an exemption for certain habitat improvement treatments.
After the lawsuit was thrown out, the Forest Service asked to be compensated for the money paid to a third-party vendor for converting paper administrative records into searchable PDF computer files.
The environmental plaintiffs objected, arguing they’d brought the case in good faith because the agency’s implementation of forest regulations affects “the entire National Forest system,” not just the 29,000 acres in question.
“Through cases like this one, plaintiffs and other conservation organizations help ensure that federal agencies properly manage public lands and remain accountable to the public they serve,” the nonprofits said.
The government countered that environmental groups are actually encouraged to file lawsuits against federal agencies under the Equal Access to Justice, under which they can recover attorney fees and other litigation costs.
For example, Wildearth Guardians was awarded nearly $300,000 for winning a case against the Forest Service last year, the government said.
The government also pointed to recent tax filings that showed annual revenues of nearly $3 million earned by Oregon Wild and $4.5 million earned by Wildearth Guardians.
“Public information indicates that plaintiffs have adequate means to pay for the modest bill of costs here,” the government said.
The judge said legal precedents allow him to consider the financial resources of plaintiffs, but in this case they’ve “not demonstrated that a severe injustice will result from an award of costs.”
Oregon Wild and Wildearth Guardians had previously appealed the underlying decision to allow commercial thinning on 29,000 acres to move forward.
The groups have now amended their filing with the 9th U.S. Circuit Court of Appeals to also challenge the government’s $4,600 award.
On 11/29 there was a news story in E&E news about the 2023 Forest Service cut and sold report.
The administration’s 10-year wildfire strategy rests in part on harvesting but also puts new emphasis on prescribed fire.
Altogether, the agency said it exceeded its goal of reducing hazardous wildfire fuel on 4 million acres in the fiscal year and used fire on a record 1.9 million acres. “I’m pleased to report that we have made significant progress in implementing this daring and critical strategy,” Forest Service Chief Randy Moore said on the agency’s website.
The American Forest Resource Council, representing the wood products industry, called the cut-and-sold annual report encouraging in that the agency reversed declines from the two previous years. Harvests were the greatest since 1999. “We hope that this trajectory of growth in new offerings continues in future years at a rate that can keep up with the growth of demand for wood products illustrated by the increase in last year’s harvest levels,” said the Portland, Oregon, group’s public affairs director, Nick Smith.
In the report, the Forest Service valued the cut timber at about $163 million. A total of 113,577 sales generated $155.4 million, according to the agency.
And while certain forests, such as the nearly 17-million-acre Tongass National Forest in Alaska, generate many of the headlines on timber versus forest preservation, other, smaller national forests are the engines of timber production.
While the Forest Service cut 18.1 million board feet on the Tongass, that pales in comparison to the 321 million board feet reported cut on the 708,000-acre Daniel Boone National Forest in Kentucky, 87 million board feet on the Colville National Forest in Washington state and 86 million board feet cut on the Mark Twain National Forest in Missouri, for instance. Oregon is a top state for timber harvesting, with 333.3 million board feet cut for the fiscal year, which ended Sept. 30. So is California, with 223.3 million board feet.
The annual report also shows disparities from one region to another.
Region 1, covering Montana, northern Idaho and part of Washington state, saw a decline of 16 percent in volume sold from fiscal 2022, which Smith attributed to ever-present litigation on proposed projects. Region 5, in California, had a 1 percent increase but has been held back by wildfires that reduce the value of timber that can be salvaged, Smith said. On the other hand, Region 6, covering Oregon and most of Washington state, reported a 17.3 percent increase in volume sold.
Personal Use Firewood?
The report came with a side note that’s important, said Bill Imbergamo, executive director of the Federal Forest Resource Coalition, representing companies that harvest from federal lands. The sales figures include wood cut for personal firewood, which the Forest Service allows through permits. Those permits aren’t reflected in the data for volume cut, however. Imbergamo said his organization supports permits for cutting of personal firewood but doesn’t believe they should be counted as timber achievements, since firewood-cutting projects aren’t subject to the National Environmental Policy Act and aren’t competitively bid in the way commercial timber is.
I wonder what the sales figures for personal use firewood are?
To environmental groups, the Forest Service striving to boost the numbers puts the Biden administration’s carbon-reducing goals at risk, as healthy forests are a major carbon sink. Many say the federal government should stop logging old growth and scale back cutting of mature forests on land it manages.
I can safely say, given my review of comments on the Climate-Smart Agriculture and Forestry request for comments by USDA, that not all environmental groups feel that way. Even large ENGO’s like TNC and EDF would not agree with that. For example EDF, here, and most people are aware that TNC has a ginormous contract to help the FS with fuel treatments of various kinds, including mechanical thinning. It would be helpful if folks would mention which environmental groups they spoke with more specifically. Otherwise it seemingly gives some environmental groups’ views legitimacy at the expense of others. As far as I know there isn’t an organization of ENGO’s that determines the Official ENGO Party Line on issues.
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Anyway, eagle-eyed Andy Stahl pointed out that the Daniel Boone’s was certainly off as it was usually in the neighborhood of 2-10 mmbf, not 321. Apparently the FS is correcting this, and we will post the update when we receive it.
We observe predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation. The highest litigation rate is in solar energy projects, nearly two-thirds of which are litigated. Other high-litigation sectors include pipelines (50%), transmission lines (31%), and wind energy projects (38%)
If anything, and at the highest possible level, we conclude that current debates regarding the question of permitting reform are overly focused on NEPA’s administrative process and comparatively neglect NEPA’s judicial process. Judicial review of NEPA appears to significantly impact infrastructure project development in the United States, and it impacts both the projects that are litigated
and those that are not.
Although the suthors are “happy to qualify that conclusion as limited to large infrastructure projects”, I think it is also relevant to forest management projects.
As discussed herein, many prior studies of NEPA practices and environmental litigation have focused on land management agencies such as the U.S. Forest Service or the Bureau of Land Management (BLM). We aimed tofocus specifically on infrastructure projects because they differ from area management or forestry projects in terms of both the impacts of the federal actions on the environment, and the practical impacts of environmental litigation on the projects.
One thing that’s obviously very different, and not in this quote, is the role of proponents. Let’s think about a fuel treatment project.. it is mostly between people who want it (including timber folks if there is a mill around) and people who don’t want it. For the most part, loggers and mills are not making investment decisions based on a specific project making it through the litigation mill. To the contrary, geothermal, solar and wind companies are subject to the whims of interest rates, the time value of money, supply chain difficulties and so on. Their operational environment is substantially more complex, and it appears that their connections to political actors may be stronger than, for example, Tina and her family who run Tina’s Sawmill. In the Forest Service, these projects may be more like Wolf Creek or ongoing litigated projects with specific proponents.
It is possible that NEPA’s architects, even Senator Jackson, failed to foresee28 the volume of litigation that would stem from the law because the environmental law sector was nascent, almost nonexistent, at the time of NEPA’s passing.
In fact, it is remarkable that NEPA’s evolution has been so primarily driven by case law rather than executive orders or major guidance by CEQ. After the 1978 CEQ guidance changes, NEPA did not undergo another major guidance change until CEQ published another revision in 2020, which was followed by additional rulemakings in 2021 and 2022.
In the case of NEPA, that limiting principle on the scope of environmental study is not found in law. NEPA’s “opaque, constitution-like language seems to give courts enough latitude to subject NEPA documents to either the hardest of looks or the softest of glances.”43 Judicial flexibility translates to agency uncertainty, to the point that permitting time and effort may be driven less by the anticipation of environmental impacts and more by the presence of conflict, or stakeholders with the resources and motivation to litigate against the project.44
The procedural nature of NEPA litigation is a key driver of “litigation proofing” and why contentious environmental studies under NEPA tend to grow into the many thousands of pages, despite the fact that strict page limits for EISs have been recommended by CEQ guidance since 1978. When asked to review NEPA studies, courts are deferential to federal agencies on their substantive determinations.46
On the question of limitations for its judicial reviews of agency NEPA decisions, the court in the Calvert Cliffs’ decision stated: “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgement for that of the agency.”
I keep reading that, but that’s not my lived experience. For example, I remember courts ruling that the BLM’s air quality model should not have been used; often courts weigh in on scientific controversies against the agency position. It’s entirely possible I’m missing something important and legal here, so maybe legal folks can enlighten me as to some kind of overall pattern in agency deference. Anyway…
They are far less deferential when considering topics, impacts, or alternatives that were not included in the environmental study. This dynamic can create a game of “cat and mouse” for project opponents and federal agencies, in which potential litigants try to identify and comment on alternatives or impacts that were not studied, and federal agencies are left to study everything as a means of litigation-proofing their environmental study.
Yes, cat and mouse, and sometimes it feels like judges “bring me a rock, no not that rock” to the agencies.
What the authors have to say about the “denominator” issue
Additionally, many prior studies have taken a very broad approach to estimating the prevalence of NEPA litigation. They do so by dividing the number of cases filed under NEPA (on average just over 100 annually) by the total number of agency actions that could be subject to NEPA litigation, which includes CEs and EAs (on the order of tens of thousands of actions). Most of those estimates rationally find that the litigation rates associated with NEPA are “exceedingly low.”130
Yet, we find such a calculation underwhelming, and especially so for our purpose, which is to study the impacts of the NEPA process on infrastructure development. The rate of NEPA litigation against all NEPA actions is less useful in part because the distribution of actions is extremely skewed. CEs constitute the vast majority of federal actions (upwards of 99%), and most of these permits are relatively short in duration for relatively minor actions.
This is an interesting observation.
We can generalize a bit and classify what we observe as two distinct but overlapping strategies for navigating federal environmental permitting: one that accepts a higher degree of litigation risk and thus has shorter permitting timelines but also higher rates of litigation, and another that has very long permitting timelines, perhaps due to litigation-proofing, and thus relatively lower rates of litigation. The question of which of these “strategies” is optimal would likely be determined by a wide range of unique circumstances of the environmental impacts, politics, and economics of a specific project.
However, we do note that in the sectors with higher rates of private investment in predevelopment, project sponsors appear to accept more permitting risk and to complete permits faster.
And something I’ve argued for:
The litigation databases that we used for this study are naturally oriented toward their users, or attorneys, and thus focused on published cases and legal precedent. Empirical research is much more challenging to conduct, especially in the many cases that do not result in a published opinion, or which are resolved via settlement. The result is a lack of transparency in many of the most important decisions regarding our public works and their mitigations, because many of those decisions are made during litigation settlement negotiations or during negotiations with stakeholders in the shadow of their threats of litigation.
It is in the public interest for transparency to be significantly increased in NEPA litigation and for other costs and litigation associated with the permitting of infrastructure projects. Recent legislative proposals have included transparency requirements addressing only minor, direct costs, such as the agency expenses to prepare an environmental study. A better alternative would be a requirement for federal agencies to publish online all documentation associated with project litigation during predevelopment, alongside the (already) publicly posted environmental study for the project. Given the public interest in project litigation, agencies should also be required to publicly disclose litigation documents instead of leaving journalists and the public to contend with and pay for federal court records.
Finally, here is their chart of kinds of projects they studied, litigation rate, average permit duration and counts.
Many thanks to John for this link to a Seattle Times story on John Marshall, who is taking photographs from the same areas as the Osborne photos of the 1930s. Very cool photos and it’s not paywalled. If you want to learn more about the Osborne photos, Bob Zybach provided a link to a project trying to provide comparison photos over a broad area. The Osborne photos from some areas you may be familiar with are posted on the site. This seems like a useful effort, and it sounds like lots of different folks are funding different parts. I’m surprised someone with funds doesn’t take this on more broadly and coordinate. Here are some quotes from the story:
His images, taken from the same vantage points nearly a century later, illustrate the consequences of relentless fire suppression. Across the state, Marshall has documented the transformation of landscapes historically characterized by patchworks of saplings, mature trees, shrubs and meadows — all shaped by frequent, small fires. Today, clearings have been swallowed up. Habitat diversity has diminished, and ridges and hillsides are thick with timber. Many forests, especially in Central and Eastern Washington, are stressed by overcrowding, heat, drought and insect infestations — and primed for megafires.
It’s not a new story, but the pictures tell it in a way words can’t.
…..
Forest Service ecologist Paul Hessburg, who helped recruit Marshall to the panorama project in 2010, has used the before-and-after images in scores of scientific publications and nearly 200 presentations to peers and the public, making the case for allowing some fires to burn and deliberately setting others to reduce the risk of massive blazes.
“These visuals are so powerful because they show the scale,” says Hessburg, who’s based at the Pacific Northwest Research Station in Wenatchee. “People come up to me after talks and say, ‘You know, I wouldn’t have believed it until I saw it — but there it is.’ ”
The panoramas also helped Hessburg bust a long-standing myth that high-elevation forests in the Northwest hadn’t burned frequently in the past. “John and I have been working together in different geographies to show people how, in 100 years or less, the forest has changed,” he says. “And it’s changed more than we could have even imagined until we had these pictures.”
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The agency recently launched a forest health initiative that includes tree-thinning and prescribed burns. “We’ve grown up with these dense, thick forests, so people naturally think that’s what a healthy forest looks like,” says Chuck Hersey, of DNR’s Forest Resilience Division. “But our fundamental forest health problem in Eastern Washington is that there’s too many trees.” Side-by-side images separated by nine decades make the case at a glance, showing the stark changes in the landscape.
One example is Squilchuck State Park near Wenatchee, where fire used to sweep through every dozen years or so before land managers started snuffing out every blaze. A detail shot from the 1934 Osborne panorama shows open meadows interspersed with clumps of mature, fire-resistant Ponderosa pine and sparser stands of firs and other species. In the image Marshall made in 2018, the area is blanketed with wall-to-wall trees. The pictures helped Washington State Parks explain its rationale for two recent thinning operations to lower the fire risk.
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In 1934, several patches across the landscape had recently burned, he explains. Some were ringed with shrubs and deciduous trees. Now, most of those areas are completely knitted in with conifers. But in other places, there seem to be more openings in the tree canopy today than 90 years ago.
“That’s due to insects and disease,” Marshall says. While fires clear out flammable material, infestations don’t. “It only adds to the fuel loads, which are just ginormous now.”
We might want to email the reporter and thank her.. “catch people doing something right”.. maybe FS folks remember the training we had on that..
Yesterday we were discussing environmental justice and residents of dry forests. Jon said “Beyond the formal environmental justice realm (which does not appear to include “rural communities in dry forests”), this is pretty much a matter of opinion, and not a very practical criterion.”
I ran across this article in Wildfire Today which raises other questions. In addition to Jon’s question, I think pre-climate change, some people were originally not sympathetic to dry forest inhabitants (they shouldn’t live there). Now that wildfire is thought to be a result of climate change, though, it seems like attention has been drawn to the fact that low income people also live here. Which I think we knew, but…
I don’t know about 90 percent of all people exposed.. maybe there is a map somewhere that shows it. Also how “exposed” is defined.
Around 90 percent of all people exposed to wildfires over the past 23 years lived in either California, Oregon, or Washington. Among those, researchers found a disproportionate number were poor, a racial minority, disabled, or over the age of 65.
A recent study examined the “social vulnerability” of the people exposed to wildfires over the last two decades. Social vulnerability describes how persons with certain social, economic, or demographic traits were more susceptible to harm from hazards including wildfires or other natural disasters.
From 2000 to 2021, the number of people in the western United States who lived in fire-affected areas increased by 185 percent, while structure losses from wildfires increased by 246 percent. The vulnerability of the people living there, however, isn’t well known despite these populations potentially never recovering after a disaster strikes.
Researchers asked whether highly vulnerable people were disproportionately exposed to wildfire, how vulnerability has changed over the past 20 years, whether population changes before a fire alter the vulnerability of the population, and whether social vulnerability of people exposed to fires was equal among states.
Each of the three West Coast states recorded disproportionate wildfire exposure of the socially vulnerable; Oregon and Washington had more than 40 percent of their exposed population being highly vulnerable while California had around 8 percent of of those exposed considered highly vulnerable. The most vulnerable populations were also those with low income, while age, minority status, and disability also affected populations’ ability to cope after wildfire.
The number of highly vulnerable people exposed to fire in the three states also increased by 249 percent over the past two decades. An increase in social vulnerability of populations in burned areas was the main contributor to increased exposure in California, while Oregon and Washington saw wildfires increasingly encroaching on vulnerable population areas.
“Our analysis highlights the need to increase understanding of the social characteristics that affect vulnerability, to inform effective mitigation and adaptation strategies,” the study said. “Particular attention to residents who are older, living with a disability, living in group quarters, and with limited English-speaking skills may be warranted, and cultural differences need to be addressed for effective policy development and response.”
Other research published earlier this year, The Path of Flames: Understanding and Responding to Fatal Wildfires, found unequal access and assistance could also play a role in who survives and who dies during catastrophic wildfires. In the study, researchers found that for many of the Paradise, California residents who died in the 2018 Camp Fire, the inability to evacuate on their own was a major factor in their deaths.
This one from Wyofile.
Michael Bennon at Stanford with Devon Wilson authored this interesting NEPA study.
