Alaska Issues

A big timber project gets a big lawsuit

by

(Clear-cutting in the Tongass Forest, Alaska | by musicwood)

 

Over the years, the Forest Service has dreamed of being able to do “big gulp” projects, or in contemporary terms, “landscape scale” projects. These essentially amount to doing one EIS for a large area and a long time period before the actual locations and treatments have been determined. There are many of these in progress now across the country, and the approach is being tested (again) in court in Alaska on the Tongass National Forest. This Earthjustice news release includes a link to the complaint (filed May 7), which includes the following:

The Prince of Wales Landscape Level Analysis Project (the Project) in the Tongass National Forest includes extensive old-growth and second-growth logging. The project area is roughly 2.3 million acres. The project area contains about 1.8 million acres of national forest land. The Project authorizes logging of up to 656 million board feet (mmbf) of timber. The U.S. Forest Service (Forest Service) estimates that this logging would occur on over 42,000 acres. The Forest Service estimates about 164 miles of roads associated with the logging would be constructed as part of the Project. The Record of Decision authorizes implementation of the Project to take place over a span of fifteen years.

The Forest Service has authorized this Project using an approach that has been soundly rejected by the courts. The agency authorized the Project before identifying specific locations for logging or road construction. As a result, the FEIS does not adequately describe the direct, indirect, or cumulative impacts of the Project on the human environment or on subsistence uses.

In the 1980’s, the Forest Service lost at least two court decisions for failure to provide adequate site-specific information and analysis in the environmental impact statements (EISs) for Tongass timber sales. City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985); City of Tenakee Springs v. Courtright, No. J86-024-CIV, 1987 WL 90272 (D. Alaska June 26, 1987). In subsequent Tongass timber sale EISs, the Forest Service began including comprehensive, detailed quantitative and qualitative descriptions of the logging and road access plans for each harvest unit proposed for sale. When it did so, the courts upheld the adequacy of the site-specific information. Stein v. Barton, 740 F. Supp. 743, 748-49 (D. Alaska 1990).

The FEIS’s Response to Comments states that “it is not possible to determine all of the direct, indirect, or cumulative impacts to wildlife habitat or connectivity that could result from this project before implementation.” Implementation of a particular part of the project has begun, apparently with no project-specific NEPA planned to determine those effects. Plaintiffs necessarily are challenging the entire project decision for violation of NEPA (and ANILCA) procedures.

There is a related NFMA issue that results from the Tongass forest plan imposing data requirements on projects that are hard to meet at this large scale, making the project inconsistent with the forest plan.  While this involves specific language in the Tongass plan, all forest plans explicitly or implicitly require certain analysis prior to projects.  The bigger the area, the harder that is to do.  And the trend of recent plan revision documents is to put off decisions about things like ecological integrity until project planning.  If successful, this could create an imposing analytical burden for large-scale projects like this one.

They are still going to have to do a site-specific NEPA analysis somewhere. The end result of all this may be that the Forest Service will create another level of planning and NEPA for “timber programs.” Just like the old days, except now added to the existing current plan and project level processes.

Avoiding Old Growth in Alaska- Sealaska and Forest Service

by
Image courtesy of Sealaska Corporation.

Here are two stories about Alaska, thanks to Forest Business Network.

First, this piece by Catherine Mater in the Juneau Empire, in which she talks about young growth and becoming “Siuslaw-like”.

From this piece from KTOO, Sealaska is going to sell carbon credits instead of/in addition to logs from its land in Alaska.

Alaska was invited to participate in the California cap-and-trade market in 2015 after lobbying from the Chugach Alaska Corporation. Chugach is also working on developing its own carbon offset credits. (Creative Commons photo by Xa’at)

Big greenhouse gas emitters in California are now able to buy carbon offset credits based in Alaska. The Southeast regional Native corporation Sealaska is using some of its lands for carbon sequestration. Thousands of acres of old growth trees will stay intact for over 100 years. It’s the first carbon bank in the state to be approved for the market.

Sealaska says its another way of securing a future for shareholders.

…

The corporation is expected to make money for its shareholders. But it’s already cut close to a third of its trees, and not all of the sites left are ideal for logging, like old growth stands next to salmon streams.

So, Mallott says the corporation faced a challenge. How do you protect those sensitive areas and still make money for shareholders?

“It was really the need to stretch our harvest and diminish our harvest from a higher level that put us in this framework thinking, ‘OK, what really is sustainability for Sealaska?” Mallott said.

Enter the California cap-and-trade program.

Basically, big polluters in the Golden State receive an allowance to release a planned amount of carbon each year. To account for each metric ton of carbon, companies can use that allowance or buy carbon offset credits. Those credits represent an actual, tangible thing: carbon stored in trees — in this case, trees belonging to Sealaska.

Mallott says carbon sequestration looked like the right opportunity. The money generated would help shareholders and nearly half of the trees on Sealaska land could stay in the ground.

He’s quick to point out this land isn’t locked up. The corporation can can still develop parcels for tourism or mineral exploration.

He says the project has already attracted a buyer. It’s too early to put a dollar figure on the deal. But he thinks the amount could be huge.

“Multiple millions,” Mallott said. “The financial benefit of this is very significant for Sealaska.”

In the past, conservation groups have been critical of the rate Sealaska has clear cut its forests.

Buck Lindekugel is a grass roots attorney for the Southeast Alaska Conservation Council, and he says that old model of logging doesn’t make sense for the region’s economy today. He welcomes the corporation’s new venture.

“We’re excited that Sealaska is seizing this opportunity to explore those options,” Lindekugel said. “We think it’s good for their shareholders, and it’s certainly good for all of us who care about the forest.”

But Mallott says Sealaska has always cared about sustainability and the bottom line.

“The carbon project. Is it a shift? It’s a recognition in the way we’ve always thought,” Mallott said.

He says the corporation isn’t going to stop logging on its remaining land. But it’s also planning to allocate more acreage to carbon sequestration in the near future.

As for what happens to the trees after the 110 years is up, Mallott says that’s up to a younger generation to decide.

9th Circuit takes out NFMA diversity requirement

by

In a 2-1 decision, which allowed the Big Thorne timber project to proceed on the Tongass National Forest, the Ninth Circuit Court of Appeals affirmed a district court opinion that the Forest Service had complied with NFMA when it adopted forest plan direction related to managing old growth forest for deer to support viability of Alexander Archipelago wolves (an at-risk species).  The dissent pointed out that prior Ninth Circuit precedent had established that:

the forest plan must comply with substantive requirements of the [NFMA] designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961–62 (9th Cir. 2002). Specifically, 36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” Our law is clear that an agency must abide by its own regulations.

The majority (both judges appointed by republican presidents) charted a new course, citing a a BLM case that had nothing to do with NFMA:

Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007).

Instead of recognizing the language of NFMA that requires plans to “provide for plant and animal diversity,” the majority opinion cites language that refers to the Multiple-Use Sustained-Yield Act (contained in a case that was not about forest plans).  It concludes:

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993–94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs.

In other words, NFMA did not take away any of the discretion provided by MUSYA.  This should be news to a lot of people, including the Forest Service.  This case would be a really good candidate for en banc review by the Ninth Circuit.

Here’s a local news story.

It’s just an administrative rule

by

The courts are finished with addressing the Forest Service Roadless Area Conservation Rule’s application to Alaska.  The Supreme Court won’t review the Ninth Circuit’s reversal of the attempt to exempt the Tongass National Forest from the rule.  Whew – glad that’s finally over.  But wait, there’s an election coming, and roadless rule opponents are thinking about that:

“And then the other thing is we could just get a … federal administration that’s friendly toward responsible resource development and they can just rescind the rule because it’s an administrative rule. It’s nothing that Congress passed.” (Owen Graham of the Alaska Forest Association)

And why stop with Alaska; rescind the entire roadless rule.  And why not replace the 2012 Planning Rule, too?  The possibilities are endless.

Tongass roadless rule exemption: facts matter

by

The Ninth Circuit has reversed the exemption of Alaska from the Roadless Area Conservation Rule.  The case highlights some limits on the role of politics in agency decision-making.

While the dissent correctly asserts that “elections have consequences,” so do facts.  While Congress may choose to ignore them, the administrative and judicial branches may not.  The Ninth Circuit en banc review found that the Forest Service failed to explain why it ignored factual findings it had made under the previous Administration.

“Thus, contrary to the contentions of both Alaska and dissenting colleagues, this is not a case in which the Department—or a new Executive—merely decided that it valued socioeconomic concerns more highly than environmental protection. Rather, the 2003 ROD rests on the express finding that the Tongass Forest Plan poses only “minor” risks to roadless values; this is a direct, and entirely unexplained, contradiction of the Department’s finding in the 2001 ROD that continued forest management under precisely the same plan was unacceptable because it posed a high risk to the “extraordinary ecological values of the Tongass.” 66 Fed. Reg. at 3254. The Tongass Exemption thus plainly “rests upon factual findings that contradict those which underlay its prior policy.” Fox, 556 U.S. at 515. The Department was required to provide a “reasoned explanation . . . for disregarding” the “facts and circumstances” that underlay its previous decision. Id. at 516; Perez, 135 S. Ct. at 1209. It did not.

“The 2003 ROD does not explain why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a “minor” one. The absence of a reasoned explanation for disregarding previous factual findings violates the APA. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.” Fox, 556 U.S. at 537 (Kennedy, J., concurring).”

An agency has some explaining to do when it changes its mind, and that is going to be problematic if the underlying facts haven’t changed.  The Forest Service should think about that when it contemplates finding (under the new planning rule) that species it had classified as sensitive because of risks to their viability do not qualify as species of conservation concern because of lack of concern for their viability.

Advice for the Tongass young-growth plan amendment

by

Though some doubted it could be done, the group of industry leaders, scientists, conservationists and government representatives has reached a consensus: the Tongass Advisory Committee has submitted its draft recommendations for managing timber harvests in the national forest that covers much of Southeast Alaska.

There are lots of interesting ideas here; maybe some becoming relevant beyond Alaska as the Forest Service gets out of the old-growth business everywhere.  Here’s one that surprised me:

It asks for changes in leadership, with more power given to regional foresters.  “This runs counter to the current culture in which District Rangers, in order to be safe and not take any risk, simply layer on Interdisciplinary Team suggestions for protection, without paying attention to redundancies,” the draft reads, “lead(ing) to a collision of restrictions that result in low volume and non-economic projects … or extinguishes projects altogether.”

It’s also counter the culture of decentralization.  It seems to be a proposal to take more risks, which I would expect to lead to more litigation.  On the other hand, I got the impression over the years that those at higher levels understood the risks better and were less likely to take them.  But then they are closer to the politicians, too.  (Maybe there’s some other perceptions out there.)

Appeal of Big Thorne Sale?

by

Another on the Big Thorne Timber Sale by E&E News…

This seems to me a “clearcut” case of the Forest Service following the law, based on what the judge says. I agree with Senator Murkowski that protracted litigation and appeals are a suboptimal approach to forest policy. At the end of the day, many times, the FS just does more work (as per Colt Summit) and unsurprisingly, no ecosystems have unraveled yet.

Environmental groups are “very likely” to appeal a judge’s decision last Friday to uphold a Forest Service plan to allow more than 6,000 acres of old-growth logging in Alaska’s Tongass National Forest, according to the groups’ attorney.

Tom Waldo of Earthjustice said plaintiffs are still evaluating whether to seek an emergency halt to the Big Thorne timber sale pending appeal to the 9th U.S. Circuit Court of Appeals.

Earthjustice represented the Southeast Alaska Conservation Council, Alaska Wilderness League, Sierra Club, National Audubon Society and Natural Resources Defense Council in two lawsuits in the U.S. District Court for the District of Alaska that were consolidated into one.

U.S. District Judge Ralph Beistline ruled the Forest Service broke no laws in crafting its 2008 Tongass land-use plan and approving Big Thorne, which allows the harvest of about 150 million board feet of trees, most of them old growth, while also mandating significant restoration and recreation improvements (E&ENews PM, March 23).

The Forest Service and a local mill have previously said they will not start ground-disturbing activities until April 1 at the earliest.

Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) has long supported the Big Thorne sale and cheered Beistline’s decision. But yesterday at an ENR hearing to discuss forestry reform, she warned that “the lawsuit isn’t necessarily over.”

She said she’s fearful that even if the Forest Service prevails on appeal, it could delay logging long enough to put southeast Alaska’s only remaining medium-sized timber mill out of business.

“Some would argue that that’s been the plan here all along,” she said. “Not to just cut it off, but to delay enough that those in the industry just give up. That’s not what forest policy should look like.”

Big Thorne Project Upheld

by

From E&E News

A federal judge in Alaska last Friday upheld the Forest Service’s controversial plan to allow more than 6,000 acres of old-growth trees to be logged in the Tongass National Forest, marking a major win for a local timber mill.

The decision by U.S. District Judge Ralph Beistline clears the way for the Big Thorne project, which authorizes the sale of about 150 million board feet of timber, most of it old-growth. It is the largest-volume timber project approved in the 17-million-acre forest since 1993.

The project’s main timber contract has been awarded, and ground-disturbing activities could begin within weeks.

The 25-page ruling is a defeat for 10 environmental groups that filed three lawsuits late last summer challenging the logging project and the 2008 Tongass land-use plan. Groups warned that old-growth logging would ruin habitat for the Sitka black-tailed deer, which is a key food source for the imperiled Alexander Archipelago wolf and area hunters.

One coalition of plaintiffs included the Southeast Alaska Conservation Council, the Alaska Wilderness League, the Sierra Club, the National Audubon Society and the Natural Resources Defense Council. The other consisted of Cascadia Wildlands, the Greater Southeast Alaska Conservation Community, Greenpeace, the Center for Biological Diversity and the Boat Co.

By targeting “most of the best remaining” mid- and low-elevation winter habitat for deer, the project will cause “irreparable harm” to hunters on Prince of Wales Island, said one of the lawsuits. All three suits were later consolidated.

Beistline rejected all of the groups’ claims.

He said the Forest Service had made a “reasonable” assessment of timber market demand, had properly explained why additional wolf population data was not necessary for the agency to make an informed decision, and had “appropriately exercised its discretion” on other issues.

He also found that the Forest Service’s review of its 2008 Tongass land-use plan “was ‘reasonably thorough’ and took the requisite hard look at the environmental consequence consistent with the requirements” of the National Environmental Policy Act.

Tom Waldo, an attorney for Earthjustice who represented a handful of the environmental plaintiffs in the case, could not immediately be reached for comment.

The Alaska Forest Association, the state of Alaska, the city of Craig and Viking Lumber Co., which won the main logging contract, had each intervened in the case in defense of the Forest Service.

Rec-tech for a day: Misty Fiords by floatplane

by

DSC_0138_edited-1

DSC_0155_edited-1

DSC_0161_edited-1

DSC_0169_edited-1

This is a guest post by Travis Bushman.. thanks for being so generous with your (furloughed) time to share these with us!

This is partially a meditation on the challenge of developed recreation on the Tongass, and partially an excuse to post some spectacular aerial photos of Misty Fiords.

The week before the furlough hit, I had a chance to get out of my third-floor office at the SO and get into the field — both to provide an extra pair of hands to the Ketchikan district recreation staff and to gain an understanding of the challenge they face in maintaining the Tongass’ developed recreation infrastructure.

Our day’s work plan involved making end-of-season visits to a number of recreation cabins in Misty Fiords National Monument. We’d be cleaning out garbage, hauling skiffs out of the lakes, inspecting facility conditions and documenting any urgent maintenance problems that would need attention before the winter hits. On any other district of any other national forest, this would likely involve two people getting a pickup truck out of the motor pool and spending the day driving around forest roads.

Not on the Tongass.

Rather, the three of us drove down to the docks and boarded a contract DHC-2 Beaver floatplane, which proceeded to hopscotch across the 2.3-million-acre monument, setting us down at eight lakeside rental cabins in breathtaking, almost-inaccessible settings. There is no way into any of these cabins except by floatplane or helicopter. Many of them are in designated wilderness and must be maintained without power tools. Cabin maintenance crews even split logs with a maul and wedge to provide fuel for those cabins which have wood stoves.

We returned after a full day in the monument with 13 full garbage bags, 11 empty propane cylinders and a couple broken fishing poles all loaded in the floats — and I brought back a new appreciation for the hard work of the cabin crews, whose numbers continue to dwindle.

That, and it hit home just how much it costs to do anything in Misty Fiords. This one trip to eight cabins — out of the ~150 the forest operates — cost about $3,000 just for the flight. Or, put in another way, we expended 125 nights of rental fees from a single cabin. That’s the cost of doing business in the 17-million-acre maze of islands and fjords that is the Tongass, and it’s an increasing challenge in an era of declining budgets.

Why Some of Our Last Remaining Old-Growth Forests May Be Privatized for a Political Favor

by

Here is a contribution from an Alaskan reader:

While world leaders converge on Rio de Janeiro this week to discuss what can be done to rein in climate change, the Republican-controlled U.S. House of Representatives has other plans: It will take up an omnibus bill that bundles together more than a dozen proposals that critics have denounced as a sweeping effort to roll back environmental laws and privatize public lands.

The bill that could go to a vote as early as Tuesday includes one measure that would privatize some of the last remaining old-growth trees inside Alaska’s Tongass National Forest, a rugged wilderness often called the “crown jewel of the U.S. public lands system.” The legislation would convey tens of thousands of acres of Tongass forestland to Sealaska Corp., a native corporation that helped bankroll Alaska Senator Lisa Murkowski’s 2010 write-in reelection victory.

Sealaska, a diversified conglomerate with native Alaskan shareholders, says the land includes sites with cultural and sacred value. But the company’s critics, including some of its own shareholders, say it’s a land grab worth billions of dollars in timber sales. Logging those lands, they warn, could jeopardize ecosystems inside one of the world’s last remaining temperate rainforests and destabilize the local economy in a region that spawns the vast majority of the world’s commercial salmon catch each year.

Sealaska, which has spent hundreds of thousands of dollars in lobbying fees in support of the legislation in recent years, has the backing of Alaska’s entire congressional delegation. Alaska Rep. Don Young introduced the measure being considered this week, while the Senate version of the bill, co-sponsored by Murkowski and Mark Begich, a Democrat, has been the subject of furious behind-the-scenes negotiations with lawmakers, the Obama administration, environmental groups and other special interests. While a new version of the Senate bill has yet to be made public, Murkowski has said she hopes to hold a Senate markup later this summer.

Sealaska didn’t respond to emails requesting comment but the corporation’s executive vice president, Rick Harris, told Reuters that Sealaska would relinquish rights to other ecologically valuable old-growth areas inside the Tongass, in exchange for the lands. According to Reuters, Harris said the deal fit with Sealaska’s mission to redress long-standing wrongs against native people in the area.

Note from Sharon: I am always interested in what appears to be the divergence of media nowadays into “us” media and “them” media and how that plays out.. here is one of the pieces in “About” Alternet, the organization that published this piece.

STRATEGIC JOURNALISM

AlterNet has developed a unique model of journalism to confront the failures of corporate media, as well as the vitriol and disinformation of right wing media, especially “hate talk” media.

Not only do we keep our readers highly informed on a wide array of topics, from hundreds of experts and sources, but we also provide laser focus on the most compelling issues of the day. We offer our readers comprehensive information, a positive vision for the future, and concrete action steps towards change. AlterNet believes that media must have a higher purpose beyond the essential goal of keeping people informed. We insist on playing an active role in helping our community funnel its energy into change.

It seems like increasingly stories are in service of agendas, and not just about explaining to people why different people think differently about an issue.

Anyway, here’s a link to Sealaska. So is returning land to them technically repatriation or “privatization” or some hybrid? There seem to be some nuances left unexamined.