2012 Planning Rule

Forest Service wins A to Z

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The Ninth Circuit affirmed the district court denial of a preliminary injunction for the North Fork Mill Creek A to Z Project on the Colville National Forest, which has been discussed here. Of note, the question of contractor-NEPA was not addressed, although the court said that the Forest Service “reviewed and approved” the EA, and “The Forest Service subsequently retracted and revised the EA to address concerns raised by the public.”

That’s right, an EA on a 13,000 acre logging project with some at-risk species. How could that be? The short answer is essentially full mitigation of effects. For pine marten and fisher, the plaintiffs agreed that goals in the forest plan would protect the habitat, and that the project was consistent with those goals by correctly identifying the habitat and leaving it alone. The legal arguments they made were more technical and weaker. So, while there are some differences here from the Colorado Tennessee project in lynx habitat, it appears that the Colville forest-wide conservation strategy for these species also simplified the project NEPA process. Full mitigation basically also occurred for sediment and open road density (It also probably didn’t hurt that, “The project was the result of a multi-year collaboration among elected officials, environmental organizations, Native American tribes, the timber industry, and community organizations.”  And maybe that had something to do with why the FS agreed to this degree of mitigation.)

The opinion includes an interpretation of the 2012 Planning Rule’s requirement for the use of the “best available scientific information in the forest planning process” (despite the fact that the new Planning Rule does not apply to either the existing plan or to any projects). Quoting a Ninth Circuit case: A party challenging the Forest Service’s scientific analysis cannot simply “cite studies that support a conclusion different from the one the Forest Service reached” and must instead provide “scientific studies that indicate the Forest Service’s analysis is outdated or flawed.”

Utah counties make plans for federal lands

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Sagebrush Rebellion light?

The state required counties to make these plans, which by itself should be a good thing (especially where there has historically been anti-planning sentiment). “This helps us to work with our federal partners to ensure Summit County’s interests are part of the conversation on how federal lands are managed,” said Sean Lewis, a Summit County planner and project manager for the drafting of the plan.  “This provides a template for us to work together with our Forest Service managers,” (Summit County Council member) Carson said. “We want to be partners with them. We don’t want to take stuff over from them and I am confident we will have a lot in common.”  This makes sense.

However, Summit County is a recreational drive from Utah’s urban centers, and we should expect other more isolated counties, with encouragement from anti-federalists, to want to use these plans to impose local control when federal land planning occurs there.  The article refers to the BLM requirement for a “consistency review” of local plans, but the 10th Circuit (New Mexico ex rel. Richardson v. BLM) held that, “A meaningful opportunity to comment is all the regulation requires.”  Nevada was similarly unsuccessful in using this provision to challenge federal planning for sage grouse (Western Exploration v. USDI).

The Forest Service Planning Rule also has requirements to “coordinate” national forest planning with local planning, which some would like to view as a consistency requirement.  But the Planning Rule also says, “The Forest Service retains decisionmaking authority and responsibility for all decisions throughout the process.”  The bottom line is that states have no authority over federal land management.

Early seral wildlife species driving forest planning debate in the southeast

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Here’s an in-depth article on the ongoing revision of the plan for the Nantahala-Pisgah National Forest in North Carolina, featuring the extent to which the Forest should provide early seral habitat (ESH).

Many conservation advocates disagree over whether promoting this specific sort of habitat over others is desirable on a large scale. They also question whether aggressive advocacy for ESH stems more from a desire to conserve species or to boost game numbers and accessibility for the benefit of sportsmen.  

Fish and Wildlife Conservation Council:

The FWCC is a proponent of expanding active wildlife habitat management and restoration through, among other things, more timber harvesting and controlled fires. Central to their advocacy is forest restoration and increasing the amount of early successional habitat across the landscape, including grasses, shrubs and trees that provide food, cover and habitat for wildlife.  The FWCC believes that the future management of the National Forest should target a minimum of 12 percent of forest in an age class of 0-12 years. The need to improve game populations is a central argument of the FWCC and has been cited as a reason to oppose new additions to the wilderness base in several county resolutions.

The Nature Conservancy:

Warwick of TNC said that historically speaking there’s strong evidence that there was a much greater distribution of young forest and more grassy areas across the landscape prior to the 20th century. However, fire suppression has been a primary factor in abetting forest growth that is now lacking in young forest age classes and creating a canopy that is too dense. “Most of the species that are declining in the Southern Appalachian require ESH somewhere in their life cycle,” he said. “If we decide it is important to stem their decline, then there’s no (other) choice than to take an active management role. That means more fire and timber harvesting.”

Southern Environmental Law Center:

Sam Evans, an attorney with the Southern Environmental Law Center and member of the stakeholders forum agrees that ESH is underrepresented in the forest, especially if you look at those tracts in isolation.  Nobody who is actively participating in stakeholder discussions is objecting to increasing habitat diversity, including an increase in harvest for ESH,” said Evans in an email written to CPP. He said that the organizations he works with are “wildlife advocates.” “The truth is, I and other conservation voices are supporting precisely the same goal—restoration of ecological integrity in order to provide needed habitat for all the forest’s native species,” Evans said.

To borrow from the forestry professionals, “ecological integrity is the answer.”  According to the interpretation of NFMA in the 2012 Planning Regulations any way.  What’s muddied the waters in NC is the idea that wilderness designation is somehow contrary to ecological integrity (it limits tools, but the desired outcome is the same).  Not mentioned in the article are which species are or will be vulnerable because of a lack of ESH (this isn’t what the TNC quote said), and it doesn’t really address how the current and expected conditions of private lands should be accounted for.  It does point out that old-growth stands are also underrepresented on the Forest.

Are Trump’s climate censors at the door of forest planning?

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In conjunction with publishing its notice of intent to prepare an EIS and draft forest plan, the Gila National Forest revealed a bit of the thinking going on on at least one national forest about whether they should continue to address climate change in the forest planning process.

Throughout the assessment process, the Forest team took a close look at the significant effects of climate change on the Gila. According to Schulz, directives from U.S. President Donald Trump to other agencies to release no evidence of climate change they find have not been represented in the assessment report.

“The documents still do talk about climate change,” he said. “You will see that. We will just see how this all works moving forward. There are a lot of aspects we will still be talking about using some aspects of terminology, like ‘drought.’ There is clearly strong local interest in managing the effects of climate change.”

So maybe they would address climate change without saying the words?  At least they’re moving forward, for now.  It’s actually hard to imagine major backsliding in forest planning since the planning rule requires the use of the best available scientific information, and I think the Forest Service has been a leader in trying to apply climate change science.  The point about local interest is important, too.  If nothing else, if someone brings it up, the agency can’t arbitrarily dismiss it.

Custer-Gallatin wins salvage logging lawsuit

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On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

Resilient forests require change in “default” response to fire

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Here is the key conclusion in an article published by the Ecological Society of America (the article specifically addresses “dry forests”):

One of the most important and fundamental challenges to revising forest fire policy is the fact that agency organizations and decision making processes are not structured in ways to ensure that fire management is thoroughly considered in management decisions. There are insufficient bureaucratic or political incentives for agency leaders to manage for long-term forest resilience; thus, fire suppression continues to be the main management paradigm. Current resource-specific policies and procedures are so focused on individual concerns that they may be missing the fact that there are “endangered landscapes” that are threatened by changing climate and fire…. Without forest resilience, all other ecosystem components and values are not sustainable, at least over the long-term. It is therefore necessary to create incentives and agency structures that facilitate restoration of wildland fire and ecologically based fuel treatment to forest landscapes.

The authors have recognized the problem that fire planning is not well-integrated with planning for other resources on national forest lands.  A key recommendation is to, “Make forest resilience a stand-alone, top land management priority and connect it to managing long-term for endangered species.” It criticizes the continued emphasis on fire suppression, including the strategy of suppressing fires to protect at-risk species.   The article strangely omits any specific references to the 2012 Planning Rule’s ecological sustainability requirements, which I think has incorporated resilience, and its relationship to species diversity, as a policy about as well as we could expect. The question is what will forest plans actually do to avoid the alleged “tunnel vision.” The authors credit the southern Sierra revision forests as “pioneering some of these efforts.”

The authors do offer one recommendation that I think should receive more attention in the planning process: “analyze long-term impacts of continued suppression.” I would expand the recommendation to more clearly recognize that forest plans are the place where overall fire management strategies will be adopted, including identification of resources and areas deemed in need of protection from fire. Desired ecological conditions based in these needs must then be a consideration in fire management decisions, which must by law be consistent with the forest plan. Decisions in a forest plan about or affecting fire management, including those that promote fire suppression, will have effects on ecosystems that must be evaluated and disclosed during the planning process.

National forest plans aid in removing bat from ESA list

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The U. S. Fish and Wildlife Service is proposing to remove the federally “endangered” status from the lesser long-nosed bat found in Arizona, New Mexico and Mexico.  Public lands play an important role in providing habitat, and federal land managers were among the “conservation partners anticipating that their 30-year recovery efforts have paid off.”

In the United States, most lesser long-nosed bat roosts and forage areas are managed by federal agencies (U.S. Forest Service, Bureau of Land Management, National Park Service and the Army’s Fort Huachuca), which have integrated the management of lesser long-nosed bat forage plants – agaves, and saguaro and organ pipe cacti – into their land use and resource management plans.

The potential for this kind of success story is why the new requirement for forest plans to “contribute to the recovery” of listed species needs to be taken seriously by forest planners.

Another payoff from standards in forest plans

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This time mandatory standards ensure that a proposed pipeline project will protect water quality:

In Bath County, the Forest Service said an access road that impacts a wild brook trout stream, Laurel Run, “is unacceptable because it parallels the stream channel with the riparian corridor for much of its length and has numerous stream crossings.”

The letter says the access road is inconsistent with forest plan standards and best management practices concerning soil and water.

Why does the Forest Service want to get rid of standards when they revise their plans?  Do they think that some mealy-mouthed desired condition of “high quality water” in a forest plan would have the same effect?  That it would be legally sufficient to claim such vague, aspirational statements meet requirements to protect at-risk species?

Natural Range of Variation in the southern Sierra national forests

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So what did the Sierra, Sequoia and Inyo do to apply this planning rule requirement to terrestrial ecosystems?  I’ve just reviewed the draft plan and DEIS, and I don’t think I’ve got a good answer.  They don’t directly say what NRV is or how they determined it (at least in the places I’ve looked).

The Bio-Regional Assessment says this (p. 39):  “NRV only was not used because at this time conditions are far removed from them in terms of fire regime, and even a modest shift toward that level of resiliency would benefit ecological integrity and is more feasible in a short period of time. The planning rule specifically provides for using ecological integrity based on measures other than NRV where this is the case.”

This view is supported by the Planning Handbook (1909.12 FSH 12.14b) (but again, the Handbook does not appear to be supported by the Planning Rule): “In some situations, there is not enough information to understand the natural range of variation under past disturbance regimes for selected key ecosystem characteristics or the system is no longer capable of sustaining key ecosystem characteristics identified as common in the past based upon likely future environmental conditions. In these cases, the Interdisciplinary Team should establish an alternative ecological reference model for context for assessing for integrity by identifying the conditions that would sustain these key ecosystem characteristics.”  However no “alternative ecological reference model” was documented.

For terrestrial vegetation the Bio-Regional Assessment then apparently ignores itself (p. 98):  “Under the 2012 Planning Rule, “natural range of variability” is a key means for gauging ecological integrity. Ecosystem sustainability is more likely if ecosystems are within the bounds of natural variation, rather than targeting fixed conditions from some point in the past (Wiens et al. 2012, Safford et al. 2012). Safford et al. (2013a) compiled comprehensive, scientific literature reviews on natural range of variability, and these are the primary basis for the summary below.”  The summaries conclude whether ecosystems are within or outside of NRV, but they don’t say what NRV is.

The Sierra Assessment says this (p. 17):  “Comprehensive, scientific literature reviews on natural range of variability were compiled. The following is an overview. Consistent with trends across the entire assessment area, terrestrial ecosystems in the Sierra NF are predominantly outside the natural range of variability (NRV) for key indicators of ecological function, structure, and composition. First, nearly half (44 percent) of the area of the Sierra NF dominated by woody vegetation (or 76 percent of montane coniferous forests) is in a highly departed condition with respect to the historic fire return interval, burning at frequencies that are significantly longer than pre-settlement fire regimes (Safford and van de Water 2013). The Sierra NF has missed an average of three to four fire return intervals across all vegetation types dominated by trees or shrubs (Safford and van de Water 2013). Subalpine forests are the exception, burning at intervals that within one or two fire return intervals.”

The Bio-Regional Assessment describes fire history on p. 33, and the Sierra Assessment appears to use historic fire intervals as a reference, but what are the vegetation conditions that would produce the desired fire intervals (which would be the NRV for vegetation)?  I didn’t find a document that says what what vegetation NRV is or how it was determined, or even what the “key indicators” are.  The draft plan does have desired conditions for vegetation, and the DEIS says those are or are based on NRV.  The quickest way to get a feel for these DC=NRV is Tables 1-7 in the draft revised forest plan.

What is NRV for vegetation characteristics?  Are they based on the best available science? Did they properly use historic reference conditions?  What was the reference period? Did they consider climate change?  Are these sustainable desired conditions?  Do they comply with the requirement for ecological integrity?   Do they provide conditions needed for at-risk species? You’d think the answers to these important questions would be easier to find, but I’m out of time.  Maybe someone else can find some answers on the revision website somewhere.

Science consistency review on the southern Sierra national forests

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The draft revised Sierra, Sequoia and Inyo national forest plans include aggressive restoration programs across the forest, including logging areas of existing old forest structure to protect old forests and associated wildlife species.  The Forest Service has asked (unidentified) reviewers to look at the draft forest plans and draft EIS and address these questions in the first science consistency review conducted under the 2012 planning rule (it is an optional process under associated agency policy):

1. Has applicable and available scientific information been considered?

2. Is the scientific information interpreted reasonably and accurately?

3. Are the uncertainties associated with the scientific information acknowledged and documented?

4. Have the relevant management consequences, including risks and uncertainties, been identified and documented?

Here are some of the topics being addressed:

• Vegetation: Forest Resilience, Seral stage distribution, Effects of post-disturbance harvest, and Impacts on native vegetation.

• Fire and Fuels: Fuels management and community protection, Current fuel loading, Current and future wildfire trends, Effectiveness of treatments for fuel reduction.

• Wildlife and Habitat: Impacts to wildlife and their habitats, terrestrial and aquatic, Protection of old forest and associated species, Threatened and endangered species habitat requirements and availability, Species of Conservation Concern habitat requirements and availability.

• Climate Change: Current and projected trends, Effects on wildlife habitats and populations, Effects on carbon sequestration and carrying capacity

Given the debate on this blog surrounding these issues, the results should be interesting.  However there is no commitment here to any public release or discussion of the results.  The comment period on the draft EIS closes August 25th.  The results of this review were scheduled to be available in August.  “The technical experts (on the planning team) will review the report, consult and address any concerns from the review team, and incorporate any recommendations that would benefit the final EIS.” 

Given the debate on this blog surrounding these issues, the results should be interesting.  However there is no commitment here to any public release or discussion of the results.  The comment period on the draft EIS closes August 25th.  The results of this review where scheduled to be done in August.  “The technical experts (on the planning team) will review the report, consult and address any concerns from the review team, and incorporate any recommendations that would benefit the final EIS.”

Here is the revision website.