The USFS has an interesting and detailed storymap on the 2022 fire in Oregon. Burned 112K+ acres around Waldo Lake, a popular recreation area.

From the LA Times yesterday. Hanson makes some good points about fire, but he doesn’t mention that the health of the giant sequoias is also influenced by competition from white fir and other species. It is those competing trees that “bulldozers, chain saws and logging” would remove, not mature giant sequoias.

In my Inbox this morning….

2023 Fiscal Year-End Drive Goal: $50,000 Deadline: Midnight on June 30 Donate today     Steven,   There’s nothing like walking through an old-growth forest.   Magnificent Douglas firs, red spruces and white pines stand like giants against the sky, while ferns, shrubs, mosses and wildflowers dot the understory.   But right now, 20 logging projects from the Monongahela National Forest in West Virginia to the Kootenai National Forest in Montana are putting mature and old-growth trees in imminent danger.1   We’ve set a goal of raising $50,000 by June 30 to keep our mature and old-growth forests off the chopping block in the year ahead. Will you donate to our 2023 Fiscal Year-End Drive today?   Last year, President Biden ordered a first-ever inventory of America’s mature and old-growth forests on federal lands and directed federal agencies to then develop policies to protect them. But the U.S. Forest Service and the Bureau of Land Management have continued to allow timber companies to log older trees at an alarming rate.   Right now, logging projects are targeting more than 300,000 acres of mature and old-growth forests.2   We know that the longer a forest remains untouched by human development, the more that life can grow and thrive there.   But these old-growth forests aren’t just irreplaceable habitat for countless animal species (though they are). They’re also our best allies in the fight against climate change — allies we lose the minute we cut them down.   The older a tree is, the better it is at storing carbon. Nearly 70% of all carbon stored in trees is absorbed in the second half of their lives.3   We simply can’t afford to chop down our oldest trees. But if we don’t act quickly, we could soon hear the chainsaws and see our beloved forests reduced to stumps.   Donate to our 2023 Fiscal Year-End Drive to be a guardian for our oldest trees in the year ahead.   We won’t let these forests be chopped down. Here’s what we’re doing to keep trees standing for generations to come:   We’re asking the Biden administration to put mature and old-growth forests on federal lands off-limits to logging. Our national network has already generated more than 40,000 public comments and are continuing to raise the voices of community members, scientists and activists around the country to tell the U.S. Forest Service to defend these trees. We’re urging Congress to pass the Roadless Area Conservation Act, which would keep our forests intact — permanently. This bill will safeguard millions of acres of America’s national forests, permanently protecting roadless areas from logging and road-building by strengthening the 2001 Roadless Rule. We’re also working to protect the North American boreal forest from logging. Our supporters and advocates are calling on major companies — including Procter & Gamble, The Home Depot, Amazon and Costco — to not use wood from the boreal for their products.   Environment Oregon and our national network have a long history of defending our forests. We helped deliver landmark protections for 60 million acres of roadless areas in national forests, and we helped restore these roadless protections to all 9.2 million acres of Alaska’s Tongass National Forest earlier this year.   Now, we’re sending a strong message to the Biden administration to let our oldest trees grow. And we’re just getting started. With your help, we can protect mature and old-growth forests in the year ahead.   Will you stand with us as we stand up for our oldest trees?   Thank you,   Celeste Meiffren-Swango Director 1. Ellen Montgomery, “Threatened Forests,” Environment America, May 19, 2023. 2. Ellen Montgomery, “Threatened Forests,” Environment America, May 19, 2023. 3. Torah Kachur, “As trees age, their climate benefit grows,” CBC News, August 18, 2017.     Your donation will be used to support all of our campaigns to protect the environment, from saving the bees and protecting public lands, to standing up for clean water and fighting climate change. None of our work would be possible without supporters like you.

Environment Oregon, Inc. 1536 SE 11th Ave., Suite B, Portland, OR 97214, (503) 231-1986 Member questions or requests call 1-800-401-6511. Facebook | Twitter If you want us to stop sending you e-mail then follow this link — Unsubscribe

Proposed rule:

“To support responsible deployment of Carbon Capture, Utilization, and Sequestration (CCUS), the Forest Service is proposing an amendment to its regulations at 36 CFR 251.54 — Proposal and Application Requirements and Procedures to allow exclusive or perpetual right of use or occupancy (36 CFR 251.54(e)(1)(iv)) of National Forest System (NFS) lands for CCUS. This proposed rulemaking would amend initial screen criteria in existing regulations to allow for permanent carbon dioxide sequestration on NFS lands to support CCUS-related activities and will help meet the Administration’s priority of tackling the climate crisis.”

From an EnergyWire ($) article:

John Winn, a Forest Service spokesperson, emphasized in an email that the proposal “does not authorize the use” of carbon capture, use and storage (CCUS) on Forest Service lands. It just opens the door to consideration; any storage proposals would still have to go through environmental review and public scoping.

Interesting reading from The Conversation: ” US national parks are crowded – and so are many national forests, wildlife refuges, battlefields and seashores.”

Excerpt:

While research shows that spending time outside is good for physical and mental health, long lines and gridlocked roads can make the experience a lot less fun. Crowding also makes it harder for park staff to protect wildlife and fragile lands and respond to emergencies. To manage the crowds, some parks are experimenting with timed-entry vehicle reservation systems and permits for popular trails.

I can offer one example: At the spectacular Multnomah Falls, in Oregon in the Columbia River Gorge National Scenic Area, parking and traffic has been so bad in recent years that these days a “Timed Use Permit will be required daily from 9 a.m. until 6 p.m from May 26 through September 4, 2023.” Permits are only available via Recreation.gov — none are available on site.

My take: these permits are annoying and don’t fully solve the overcrowding problem, but the USFS had to do something.

Rocky Mountain Elk Foundation: Cottonwood ‘fix’ needed

From AFRC’s latest newsletter (see note and links below):

Oral Argument Held in the Challenge to the Eastside Screens Amendment

On May 1, oral argument was held before U.S. District Court Magistrate Judge Andrew Hallman in Pendleton, Oregon, in a challenge to the Forest Service’s 2021 rule to amend the Eastside Screens (Eastside Screens Amendment). See Greater Hell Canyon Council et al. v. Wilkes, et al., Case No. 2:22-cv-00859-HL (D. Or. filed June 14, 2022). The previous Eastside Screens was an interim management standard for six national forests in eastern Oregon and southwest Washington. The Eastside Screens prohibited the removal of trees over 21-inches diameter at breast height (dbh) where the late old structure (LOS) forest was below its historic range of variability and proposed harvest activity was outside of the LOS. See February Newsletter. AFRC and Eastern Oregon Counties Association intervened in support of the Forest Service.

The Eastside Screens resulted in an inefficient, piecemeal approach to forest management because the Forest Service had to develop numerous project-specific forest plan amendments to accomplish forest health projects. See January 2021 Newsletter. The Eastside Screens Amendment, on the other hand, would allow the removal of trees with diameter limits of 21- to 30-inches dbh based on tree species and growth potential, and trees 150 years and older.

On summary judgment, plaintiffs argued the Forest Service failed to prepare an EIS under NEPA because the Amendment is not “insignificant.” Plaintiffs also alleged that the Forest Service failed to take a “hard look” at the direct, indirect, and cumulative impacts of the Eastside Amendment; failed to follow the required procedures for a significant change to a forest plan; and failed to prepare a Biological Assessment and undergo Section 7 consultation under the ESA. Plaintiffs also claim that the Forest Service failed to conduct a pre-decisional administrative objection resolution process in violation of the National Forest Management Act (NFMA). The Nez Perce Tribe participated in the case as amicus curiae in support of plaintiffs and was able to provide argument during the summary judgment hearing.

Oral argument was divided into four categories: NFMA, Standing/Ripeness, NEPA, and ESA claims. Regarding plaintiffs’ NFMA claim, the Government argued that 36 C.F.R. § 219.51(b) does not provide an objection process for decisions signed by the Under Secretary of the Department of Agriculture and, therefore, the Forest Service’s Eastside Screens Amendment (which was signed by the Under Secretary) did not violate NFMA. Plaintiffs argued that the plain text of the regulation unambiguously requires an objection process unless the Under Secretary actually proposed the Amendment before issuing a final determination, and Judge Hallman seemed sympathetic to that argument.

Judge Hallman asked whether claims under NEPA and the ESA were ripe for judicial review and whether plaintiffs had standing. During argument, the court expressed some concerns as to whether plaintiffs’ ESA claims were ripe because plaintiffs did not allege any interest or particular impacts to ESA-listed species resulting from the Amendment. Judge Hallman also asked several questions about whether the preparation of an EIS was necessary, particularly whether uncertainty and scientific controversy warranted additional analysis. The court asked questions related to whether significant beneficial environmental impacts could warrant an EIS. In response, the Government explained that, even though the Amendment is applicable to six national forests, there is not a significant change from the Eastside Screens in terms of acres impacted. Plaintiffs emphasized their estimate of the number of acres to which the Amendment applies and their position that there is genuine scientific controversy around the Amendment’s flexible guideline for species-specific removal of trees. The Government reiterated that any departure from the guideline in a site-specific project would have to meet the purpose of the guideline and justify the departure.

The parties also discussed the importance of the Ninth Circuit decision in Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir. 2020), in which the court held that the agency did not meaningfully address scientific studies and controversy regarding the efficacy of variable density thinning to reduce fire risk. Intervenors explained to the court how the agency considered and responded to public comments, and the changes made between the draft and final EA in response to public comments. Plaintiffs took issue with how those responses were not provided to the public and only found within the administrative record and in footnotes. Intervenors pointed out that the court should not fall into the trap of form over substance when evaluating the agency’s response to public comments.

Ultimately, Judge Hallman requested the parties submit supplemental briefing on the following: (1) the beneficial impact of the Eastside Screens Amendment in relation to NEPA significance; (2) the context of the Amendment, again in relation to NEPA significance; (3) the Forest Service’s engagement with public comments and opposing viewpoints in the administrative record; and (4) the proper remedy in the event the court were to find a legal violation. AFRC submitted its supplemental briefing on May 30.

In the week prior to oral argument, Dr. James Johnston with the College of Forestry at Oregon State University re-submitted an amicus curiae brief and declaration, joined by eleven other scientists, in support of the science behind the Amendment—the court has not yet ruled on whether to accept Dr. Johnston’s amicus curiae brief. Judge Hallman is expected to issue a Finding and Recommendation by the end of July and, in the event of any objections, those would be reviewed by District Court Judge Ann Aiken. /Sarah Melton

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The Bark v. U.S. Forest Service involves the Crystal Clear Restoration Project on the Mt.  Hood National Forest, which we discussed here. Shortly after the court’s decision was released, the White River Fire burned through the project area. The agency’s Rapid Assessment Team’s report on the fire’s impact is here.

For the NEPA nerds among us…. Fron Brownstein, a law firm.

Much Ado About NEPA

The Fiscal Responsibility Act’s Revisions to the Iconic Statute Largely Codify Existing Interpretation and Practice

On May 31, 2023, the House of Representatives advanced the Fiscal Responsibility Act of 2023 (“FRA”), which would suspend the federal debt limit until Jan. 1, 2025. The FRA passed the Senate last night and will be signed into law by the president. Though largely focused on federal spending, the legislation also amends the National Environmental Policy Act (NEPA) of 1970. The amendments are notable because the statute has rarely been revised in its 53-year history. Because the amendments largely track existing regulations and federal case law interpreting NEPA, the modifications will not significantly change how NEPA is applied in practice. However, by codifying the current regulations, Congress entrenches the provisions, providing project proponents with greater regulatory certainty.

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Interesting story in the Salem, Oregon, Statesman-Journal.

“‘Missed opportunity?’ Records detail Forest Service response to Beachie Creek Fire before blowup.”

The fire started in a wilderness area.

The Statesman Journal looked at multiple records called “fire decision documents” from the earliest days of the fire, along with daily public records and information released by the Forest Service last week to create a detailed narrative. Among the findings:

• After an initial attack that attempted to put the fire out, crews stepped back and didn’t drop water for nine of 10 days from Aug. 21 to Aug. 30.
• Smokejumpers, hotshot crews and a rappel team attempted to access the fire, but it was deemed beyond the “realm of acceptable risk,” leading to a containment strategy.
• Crews wrote on Aug. 21 that the containment strategy “is vulnerable to resource availability and to critical fire weather events (east winds for example).”
• Later, the Forest Service said calls for additional resources went unanswered even as historically dangerous east winds and fire danger arrived — the two things they feared.
• Independent and retired fire experts who looked at the response were mixed in their assessment. Some said the agency did the best it could given a difficult, dangerous fire location — and limited resources — while others said fire crews were too cautious and should have stayed more aggressive.

Note that this was an extreme fire season in the west, especially in Oregon. Resources were stretched.

The fire burned nearly 200,000 acres of land, destroyed homes in Detroit, Gates, and Mill City, and killed five people.