2012 Planning Rule

Coastal pine marten proposed for listing as a threatened species

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The U. S. Fish and Wildlife Service has proposed listing the coastal (Humboldt) marten, found in older forests in California and Oregon, as a threatened species.

“Martens are vulnerable to predation and increased competition in habitats that have been subject to either high–moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts…”

As a threatened species, the prohibitions in ESA against incidental take (§9) would not apply, but the FWS usually applies them using a special §4(d) regulation, which it is doing here. As is also common, they carve out exceptions to the prohibitions where take of the marten would be allowed; two of which would be relevant to national forest management:

(1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

(3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.

Here is the rationale:

“Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species’ long-term viability and conservation.”

What this means is that forestry management activities that are not for the purpose of limiting fire or not consistent with the species’ needs would violate ESA if they harm any martens (unless they obtain an incidental take permit).

Regarding (1), I would ask whether all it takes to comply is for a project to say that it is for this purpose, or considering some of the discussions on this blog, does there have to be scientific support for the idea that a particular practice would actually have the intended effect.

Regarding (3), there is obviously a role for forest plans to include coastal marten conservation prescriptions. Presumably, plan components to create and maintain complex tree and shrub conditions for martens would be consistent with the NFMA requirement to provide ecological integrity and conditions needed for viability of at-risk species. What I haven’t seen before is a process by which the FWS reviews a forest plan for consistency with §4(d) criteria for a threatened species.

There could be future challenges to projects for violation of §9 because they do not meet these criteria.  The Center for Biological Diversity believes that “industrial logging” could meet these criteria and continue to occur in marten habitat.  At least (1) seems like it could be an exception that swallows the rule.  If it were dropped for fuel reduction projects, they could still occur if consistent with marten conservation under (3).

Does a Fire-Ravaged Forest Need Human Help to Recover?

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That’s the title of this article.  It starts out with Chad Hanson walking the Rim Fire in California, so I thought there would be some interest here.  Like so many things, the answer I get from this is “it depends.”  It first depends on what the desired condition is.

Several months after the Rim Fire was extinguished, Eric Holst, a vice president of the Environmental Defense Fund, penned a blog stating that “letting nature heal itself” after a high-intensity fire is likely to result in a forest dominated by shrubs for many decades.”

As if that result is inherently wrong.  Whether that is a desired outcome or not is the kind of issue that should be addressed strategically through forest planning.  It may be fine from an ecological standpoint.  If the plan determines that speedier regeneration is needed for old growth species or economic reasons, that should be debated and decided at the plan level.

Then there is the science question of whether that would really be the outcome.  That depends on the nature of the site and the fire.  Regeneration problems seem to be the exception rather than the rule in the Bob Marshall Wilderness in Montana:

“The exception, he says, is in areas that have reburned in less than 20 years, too soon to allow for a seed crop to mature, especially on the west- and south-facing slopes that are hotter and drier.”

The key question to me then seems to be whether salvage logging in susceptible areas reduces the chance of reburns.  That is a determination that could be required at the project level by a forest plan standard (for those areas with a desired condition for rapid revegetation).

The site-specific effects of each salvage project would also need to be determined (and could provide reasons to not log despite the authority in the forest plan to do so), because …

“The scientific literature on post-salvage logging is contradictory. Some studies argue that the practice is beneficial because it churns up the ground, softening hard, water-repellant soils that sometimes form after an intense fire. Proponents also insist that the detritus left behind after logging inhibits erosion.  Critics such as Hanson say that the logging skidders decrease natural forest regeneration, kill seedlings, and compact the soil in a way that increases runoff and erosion, harming aquatic life in streams and rivers.”

Of course, maybe salvage logging is just as simple as how this reporter characterized the latest salvage efforts on the Lolo National Forest:

“The Lolo National Forest wants make the best of last year’s 160,000-acre Rice Ridge fire by logging some trees…  If they can get the chief of the Forest Service to grant an Emergency Situation Determination, the public will not be allowed to object to the project once Mayben makes her final decision.”

 

 

Should dry forests be considered suitable for timber production?

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Recent research is showing that lower elevation forests are not regenerating after fires as they have historically.  From the abstract of the research cited in this article:

“Results highlight significant decreases in tree regeneration in the 21st century. Annual moisture deficits were significantly greater from 2000 to 2015 as compared to 1985–1999, suggesting increasingly unfavourable post‐fire growing conditions, corresponding to significantly lower seedling densities and increased regeneration failure. Dry forests that already occur at the edge of their climatic tolerance are most prone to conversion to non‐forests after wildfires. Major climate‐induced reduction in forest density and extent has important consequences for a myriad of ecosystem services now and in the future.”

One of those consequences should flow from NFMA requirements for sustainability and ecological integrity.  To put that in simplistic terms, if the land “wants” to be non-forest in the future climate, we have to let it be non-forest.  And non-forested lands are not suitable for timber production, regardless of whether we could plant and maintain a plantation there.  I don’t recall seeing any discussion of this in forest plan revision material I have reviewed recently.  There is also requirement to use the best available scientific information, so a suitability evaluation of low-elevation forests should go beyond what is currently growing there to address what would be expected there in the future.  Many national forests could end up with fewer suitable acres.

Public radio asks,”How Much Of The Chetco Bar Burn Should Be Salvage Logged?”

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The Forest Service says it will salvage log 4,000 out of the 170,000 acres burned.

Smith heads Health Forests Healthy Communities, a timber industry-affiliated non-profit that advocates for active forest management. He says the relatively small post-fire logging project the Forest Service is planning is not only economically inadequate …

“ … but also a missed opportunity to reforest more of the landscape for the future.”

Smith says that salvage logging — followed by replanting — helps restore forest health. He says it’s important for fire safety, too.

“Less salvage means more dead and dying trees and snags that not only fuel the next big fire but also put firefighters in danger the next time they need to go in there and put out a fire,” he says.

The Oregon Society of American Foresters says post-fire logging can foster “timely development of desirable forest conditions.”

Still, in the Environmental Assessment for the Chetco Bar salvage project, Forest Service officials don’t claim any forest health or fire safety benefits. According to project coordinator Jessie Berner

“… We are trying to capture the value of those trees to try to recoup some of the economic value of that timber in support of our local communities.”

Salvage logging can definitely have economic benefit. But the scientific evidence that it leads to healthier forests is thin … Jerry Franklin is professor emeritus of ecosystem analysis at the University of Washington.

“I’m not aware of any science that supports the notion that salvage logging contributes significantly to ecological values, ecological recovery,” he says

“The best thing to do generally is to allow it to develop following the kind of natural processes that have been going on for thousands of years,” he says.

One point of disagreement might be whether that desired “landscape of the future” or “desirable forest conditions” constitutes “ecological recovery.”  Ecological sustainability and integrity are required for national forest lands.

The mysterious disappearance of sensitive species – Flathead plan revision example

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Harlequin duck (Histrionicus histrionicus)

The Forest Service created through its directives (FSM 2670) a program to manage sensitive species, which it defined as species “identified by a regional forester for which population viability is a concern.” Sensitive species “must receive special management emphasis to ensure their viability and to preclude trends toward endangerment that would result in the need for federal listing.” Up until now, forest plans had to include direction for sensitive species “to ensure viable populations throughout their geographic ranges.” In addition, all plans and projects required a biological evaluation (BE) for each sensitive species “to ensure that Forest Service actions do not contribute to loss of viability … or contribute to trends toward Federal listing.” The BE became an important tool for biologists to use at the project level.

The 2012 Planning Rule requires identification of Species of Conservation Concern (SCC). They are defined as those for which “the regional forester has determined that the best available scientific information indicates substantial concern about the species’ capability to persist over the long-term in the plan area.” The plan must maintain viable populations of these species, but there are no requirements for future projects to address them; compliance with forest plan requirements for SCCs is presumed to meet the needs of these species. This elevates the importance of plan components for these species.

The Forest Service issued an internal letter to regional foresters on June 6, 2016 explaining that it would phase out the sensitive species designation. It recognized that, “As noted in the preamble to the 2012 planning rule, “[Regional Forester Sensitive Species] are…similar to species of conservation concern.”   It also stated that, “Applying both systems on the same administrative unit would be redundant.” Consequently, “Once a revised plan is in effect, the Regional Forester’s Sensitive Species list no longer applies to that unit.” The letter acknowledges that a biological evaluation must still be prepared for a revised forest plan. (Interestingly, the letter had only a planning file code, so it did not necessarily go to biologists.)

The Forest Service is thus implementing a substantial change in wildlife policy, with no prior public involvement, through individual forest plan revisions. This should mean that the forest planning process would include a clear explanation for the public that some species are no longer sensitive, and that no species will be evaluated for future projects (outside of any effects analysis NEPA might require). In particular, there needs to be a reasoned explanation of what facts have changed for those species where viability was a concern, but isn’t any more. The forest plan EIS must also consider the effects on sensitive species of removing the existing requirements to evaluate and maintain their viability at the project level (in comparison to the no-action alternative).

Instead, the Flathead has mostly hidden any information about sensitive species. Most existing sensitive species (17 animal species) are not designated as SCC (3 animal species), but there is no list of sensitive species in any of the Forest documents (though they can be identified from a list of all species included in an EIS appendix). There is no biological evaluation as required by the Forest Service Manual and the 2016 letter. There is a summary of “biological determinations” for sensitive species, but it is not listed among the planning documents on the website. It cites the forest plan EIS as the basis for its one- or two-sentence summaries. The EIS does not mention sensitive species at all, but it includes effects analysis for species that are/were sensitive.

While it is therefore possible to find some information on sensitive species, the Forest does not explain the significant implications of that information. It does not disclose the changes in scientific information that provide the rationale for declassifying them as at-risk species, and it does not explain how the sensitive species policy changes will affect future management of this Forest. These seem like fatal (arbitrary) omissions.

Huron-Manistee forest plan contributes to recovery of the Kirtland’s warbler

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The U. S. Fish and Wildlife Service has proposed removing the Kirtland’s warbler from the list of endangered species.  It inhabits young stands of jack pine in the Great Lakes region and was one of the first species listed in 1967 due to fire suppression and parasitic cowbirds.  More background from the FWS is here.

The 2006 Huron-Manistee forest plan includes many plan components designed to promote the species’ recovery.  One management area includes 7 areas identified as essential Kirtland’s warbler habitat or emphasis areas.  In these areas, among other things, the forest plan prohibits grazing, trail construction, and common variety minerals mining, and there are breeding season restrictions on recreation.

The forest plan also says:

A considerable portion of the dry sand outwash plains on the Huron National Forest in Management Area 4.2 will be managed as essential habitat for the Kirtland’s warbler… This prescription area contains approximately 45 percent of all National Forest System lands on the Huron-Manistee National Forests, which includes approximately 136,000 acres of Kirtland’s warbler emphasis areas.

Objectives:

Create approximately 1,600 acres of essential breeding habitat each year. Approximately 15,960 acres of essential breeding habitat will be available at any one time into the foreseeable future. This will enable the Forests to provide for a minimum of 420 pairs of Kirtland’s warblers.

Forest-wide standards and guidelines:

Habitat and population objectives are in accordance with the Kirtland’s Warbler Recovery Plan (USDI-Fish and Wildlife Service 1985) and Strategy for Kirtland’s Warbler Habitat Management (USDA-Forest Service 2001)

Management area standards and guidelines:

  • Develop Kirtland’s warbler breeding habitat by designing and configuring treatment blocks that mimic the regeneration effects of wildfire.
  • Prepare treatment blocks for regeneration by clearcutting.
  • Treatment blocks will be no greater than 550 acres unless reviewed by the Regional Forester.
  • Provide 15 to 25 snags per acre in treatment blocks.

By specifically incorporating science-based conservation and recovery strategies into the forest plan, the plan has guided the projects that have promoted recovery, and has limited activities with adverse effects.  The forest plan may also serve as a regulatory mechanism that the FWS can cite supporting its future outlook for the species.  This is a good example of what the 2012 Planning Rule directs forest plans to do.  (It’s too bad that Forest Service is less enthusiastic about including conservation strategies that restrict timber harvest.)

 

Flathead forest plan revision nears finish line

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I’ve been looking at the second final forest plan and EIS prepared under the 2012 Planning Rule, the Flathead. I want to commend them for some of the things they’ve done.

They have done a very good job of describing desired conditions for many vegetation characteristics based on their natural range of variation. I can tell you that this is the kind of “specific” desired conditions the drafters of the Planning Rule had in mind for providing ecological integrity. They also conducted an analysis of how vegetation conditions would change over time as a result of the plan, while factoring in expected fire regimes, and they were able to use this for some of their analysis of effects on viability of wildlife species that are closely tied to vegetation. I pretty much only looked at the wildlife parts of the EIS, but I thought the terrestrial part was well organized, and included some thoughtful discussion of what plan components actually do. One of my interests is habitat connectivity, and they have given it a more serious look than most, including actually considering and identifying specific areas to be managed for connectivity.

I was looking for problems related to at-risk species, and there are some. Regarding fire, even though they don’t call the wildland-urban interface a “management area,” it is one because a lot of plan components apply differently there.

I’ve also seen how big of a job it is to review and understand something this massive within 60 days, even with only a limited focus – and I’m someone with probably as much experience at this as anyone. It helped to have followed this process off and on from the beginning, but I have some sympathy for organizations trying to promote changes at this point in the process.   (There’s much more time to prepare for forest plan litigation.)

Next up? The Inyo is on track for “this spring.”

What if forest plans were a blank check?

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There’s an interesting observation in this opinion piece about the process for amending the Allegheny forest plan to allow construction of the Atlantic Coast Pipeline. It required replacing standards in the forest plan for this “project” – here’s one of them:

“Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area with the exception of the construction of Atlantic Coast Pipeline, where the applicable mitigation measures identified in the COM (Construction Operations & Maintenance) Plan and SUP (Special Use Permit) must be implemented.”

The problem this author points out is that the COM was written by the permittee and it wasn’t written when the public NEPA process was going on. The result was the Forest essentially writing a blank check for plan components that the Forest did not evaluate the effects of and the public did not get a chance to comment on. I think there’s some (legal) problems here.

This story got my attention because I’ve been looking at a lot of plan components being proposed for forest plans being revised under the 2012 Planning Rule.  One common theme is to not make any commitments in a forest plan, often using language that says essentially, “we’ll figure it out later,” often project-by-project.  It’s kind of hard to evaluate the effects of that forest plan decision. Sometimes it’s kind of like this example – where the forest plan defers to someone else, for example the states to tell them how to manage for wildlife. But there’s an even bigger problem when there are legal requirements that a forest plan must meet, particularly those related to plant and animal diversity.  A plan component that writes a blank check for a future decision does not demonstrate legal compliance.

Forest Service on the bandwagon to unprotect sage grouse

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Time is running out to comment on the notice that initiated “the scoping process to solicit public comments on greater sage-grouse land management issues that could warrant land management plan amendments” on 15 national forests and grasslands.  (Comments are due Friday.)  The majority of sage grouse habitat is found on BLM lands (I think the Forest Service has 8%) and the Forest Service is following behind the Department of Interior’s lead to “consider” rolling back restrictions, especially those that interfere with oil and gas drilling.  Those restrictions were added to Forest Service and BLM plans in amendments that were adopted in 2015 pursuant to the 1982 planning regulations for species viability, and have been credited with avoiding the need to list sage grouse as threatened or endangered.  The Forest Service concedes that amendments it would propose would be likely to be “directly related” to, and therefore subject to, the new diversity and viability requirements of the 2012 Planning Rule.  More background from the Forest Service here.

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.