Rio Grande National Forest Plan Revision Litigation

I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).  Two lawsuits were filed against the Rio Grande in November 2021.  One of them (Defenders of Wildlife v. U. S. Forest Service) was decided a year ago by the district court and is on appeal to the 10th Circuit.  That case is worth some discussion, so here it is.  There has not yet been a district court hearing for the other case (San Luis Valley Ecosystem Council v. Dallas).  (The Colville revised plan litigation involved the previous 1982 planning regulations.)

On January 27, 2023, the district court upheld the Rio Grande revised forest plan’s compliance with the Endangered Species Act and NEPA for Canada lynx.  The judge framed the issue in this case as whether the Forest failed to “protect the lynx by inadequately limiting logging in the Forest under a revised forest plan in violation of the ESA, the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).”  The court found no violation of ESA in the Biological Opinion by the Fish and Wildlife Service, and it summarily dispensed with the NEPA and ESA claims against the Forest Service as being based on “substantially the same arguments.”

The case involves changing forest plan management direction for Canada lynx from that included in the Southern Rockies Lynx Amendment in response to insect-killed trees and blowdown over a large portion of the Forest.  The opinion asserts at the outset that, “Petitioner’s position is fundamentally flawed for at least three reasons.”  Two of these are troubling.

The court minimizes (or perhaps rejects) the need for ESA consultation on national forest plans because they are “programmatic,” and (citing the BiOp), “no immediate consequences occur directly to Canada lynx caused by the proposed action,” and therefore “implementation cannot be said to jeopardize the lynx directly.”  If plan cannot jeopardize a species, then there should be no need to consult.

These statements and this conclusion would be contrary to national Fish and Wildlife Service policy on consultation on “programmatic” or “tiered” decisions.  Forest plans are decisions that both promote activities that could adversely affect species through desired conditions and objectives, and limit those activities through standards and guidelines.  Consultation on such decisions is based on the effects that would be allowed to occur using the “design standards” in the decision.  There is no requirement that consequences potentially leading to jeopardy be “immediate.”

The court’s conclusion is also at odds with other cases, which emphasized the broad scope of agency “actions” subject to ESA.  The 10th Circuit has determined that, “Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA.”  Forest Guardians v. Forsgren, 478 F.3d 1149, 1154 (2007).  The 9th Circuit held, “RMPs are actions that “may affect” the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.”  Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (1994).  A requirement to consult on forest plans must presume that there could be some basis for finding substantive violations of ESA, so this court’s finding of a fundamental flaw here seems fundamentally flawed.

A second “fundamental flaw” results from the fact that, “lynx habitat in the Forest amounts to just over 2 percent of the lynx habitat in the contiguous United States,” and “none of that habitat was designated as critical.”  Therefore, “even if the lynx were extirpated in the Forest, that would not significantly affect the status of the lynx across the contiguous United States.”  This raises questions about the effectiveness of applying ESA’s requirements to wide-ranging species if no individual project or even a forest-wide plan could be viewed as capable of causing jeopardy.  This is a reason why the western lynx amendments were applied across ranges of the lynx, and consultation occurred on multiple national forests simultaneously.  The reasoning the court applied here highlights the risk of now disassembling a regional strategy on a forest-by-forest basis.  Doing so on one forest should arguably trigger the need to reinitiate consultation across the range of lynx (in this case the southern Rockies national forests).

This court’s view of ESA highlights the need to challenge species conservation provisions of forest plans under the viability requirement of the 2012 Planning Rule, even for listed species.  The requirements pertaining to species viability must be met based on their probability of persistence in the “plan area.”  Various statements cited by the court would support a conclusion that lynx are not likely to persist on the Rio Grande National Forest plan area over time.  This argues for strict scrutiny of forest plan components that would allow any adverse effects to occur from management activities.  Similar to ESA, the viability requirement contemplates long-term consequences of multiple activities over time, and effects need not be direct or immediate.  (In another context, the court points out that, “the revised forest plan is intended to remain in effect only until about 2036,” but it may be that management actions during the life of this plan would contribute to the “long-term” decline, which is the test applied by the 2012 Planning Rule).

There is a counter-argument that the 2012 Planning Rule applied the viability requirement explicitly only to “species of conservation concern,” which are defined to not include listed species, for which the requirement is to “contribute to recovery.”  However, at the point at which the species recovers, it should immediately become an SCC (see Planning Handbook §12.52d.2.b) and would need to meet the viability requirement.  Regardless, logic requires that what is needed to “contribute to recovery” should be something beyond what is needed to maintain viability after recovery, and that plan components for listed species must at least provide habitat for viable populations.

This outcome would be consistent with court interpretations of the NFMA diversity requirement under the 1982 planning regulations.  When the Forest Service argued that it did not have to meet the viability requirement for listed species, the 9th Circuit found, “The effect of the Forest Service’s position in this litigation, were it to be adopted, would be to reward the Forest Service for its own failures; the net result would be that the less successful the Forest Service is in maintaining viable populations of species as required under its regulations, the less planning it must do for the diversity of wildlife sought by the statute. This is directly contrary to the legislative purpose of the National Forest Management Act.”  Seattle Audubon Society v. Evans, 952 F.2d 297, 301 (1991).  (The San Luis Valley Ecosystem Counsel claims against the Rio Grande plan include NFMA violations for lynx and the Uncompahgre fritillary butterfly, but relative to the “contribute to recovery” requirement for listed species, and not the viability requirement.)

The third “overarching flaw” appears to derive from judicial deference principles.  The court specifically notes that, “the Court does not find that the presumption of validity that attaches to agency action is overcome merely because the revised forest plan changes the way the SRLA was previously applied in the Forest.”

The remainder of the opinion discusses the scientific rationale provided by the agencies for their effects analysis and decisions, and finds that they properly address questions raised by plaintiffs, and the court was “not persuaded that implementation of the revised forest plan is likely to make conditions worse for the lynx.”  (Perhaps under stricter scrutiny called for by the NFMA plan area viability requirement the court might have been persuaded.)  So maybe the court’s findings of “fundamental flaws” were just window dressing?

On January 17, 2024 the 10th Circuit held a hearing (listen here) in this case.  I have not read the briefs, but the hearing did not discuss the overarching issues reviewed above, so it appears that they are assuming (and apparently the government did not object) that the Rio Grande revised plan could theoretically cause jeopardy to lynx.

The hearing was narrowly focused on two issues, and particularly on the question of whether the northern portion of the Rio Grande should be managed as an area of low lynx use with less protection, as it is in the revised forest plan.  That turned on the question of best available science.  The only research on lynx that included the northern portion (Ivans) concluded that there could be high lynx use.  The Fish and Wildlife Service concluded otherwise based on discussions with unnamed biologists that were not specifically documented.  Importantly, there is no record of the reasons why the Ivans study was not accepted by the FWS (or the Forest Service).  If there were no conflicting information in the record, the unattributed sources might be sufficient, but that is not the case here.  The FWS conclusions could be considered arbitrary.

The second issue was about the importance of the lynx population on the Rio Grande, and/or the importance of the Colorado lynx population to the listed species.  The record indicated that the Rio Grande lynx are important to the Colorado population.  The FWS had also said elsewhere that all six populations in the lower 48 (the listed entity) are important, but then discounted the current importance of the Colorado lynx population because it was not historically important.  Ultimately the question appeared to be whether the FWS properly considered the importance of these lynx in its jeopardy determination for the species.

We await a decision.

 

 

 

New available science for wildlife connectivity

National Parks Conservation Association

Federal lands are separated by highways all over the west.  Those highways are a barrier to many species of wildlife, including species listed under the Endangered Species Act and those identified as Species of Conservation Concern (SCC) in national forest planning. Climate change is recognized as increasing the importance of wildlife movements.

Forest Service planning regulations pertaining to designation of SCC require consideration of all threats to the species’ persistence in the plan area, whether or not the threats occur within the plan area or are the result of national forest management.  Often, significant threats to these at-risk species come from outside of the federal lands; one of these is the effect of highways on connectivity.   The Forest Service could improve prospects for some species to persist in the plan area by making it easier for them to get to and from it.  They can do two things to promote that.  They can 1) collaborate with other agencies managing land, wildlife and transportation to identify the most important areas to jointly manage for connectivity, and 2) manage their lands in or near these areas to minimize barriers to wildlife movement, first by recognizing them as such in forest plans.

There’s a new tool from the Center for Landscape Conservation that could help with identifying the important areas consistently across the west.  As with any newly available science, the agencies involved should be looking at this mapping tool and determining whether and how they will use it, and ideally documenting the rationale, especially for disregarding this new information.  National forests should be checking their forest plans to see whether their assigned management areas would make these connectivity areas less attractive to wildlife movement, and amending plans as needed.

The study that produced these maps also found that “1,523 of the CC (“collision and connectivity”) segments (338 mi) have enough collisions to make it more cost-effective to build a wildlife crossing than to do nothing,” and land management agencies should support such efforts and manage their lands to facilitate their use by wildlife.

Climate scientists then and now

It’s been interesting the last few months on TSW seeing up close how climate change deniers operate.  To me any way, but maybe not to everyone reading TSW for insights about public land management.  I don’t think this is the place to debate the scientific nuances of global warming, point by point (nor is it the place to be debating Hillary or Hunter).  At the risk of feeding the trolls one more time, I’ll say one more thing about what I think about the broader climate issue, and then try hard to disengage.

This article (partially excerpted here) is actually about the role of scientists (one of Sharon’s favorite topics), and its actual title is

Why many scientists are now saying climate change is an all-out ‘emergency’

After a few years of record-breaking temperatures and extreme weather events, Ripple’s experience is a sign of how climate scientists — who once refrained from entering the public fray — are now using strident language to describe the warming planet. References to “climate emergency” and “climate crisis,” once used primarily by activist groups like the British-based Extinction Rebellion or the U.S.-based Sunrise Movement, are spiking in the academic literature. Meanwhile, scientists’ communication to the media and the public has gotten more exasperated — and more desperate.

On Monday, scientists released a paper showing that the world’s “carbon budget” — the amount of greenhouse gas emissions the world can still emit without boosting global temperatures more than 1.5 degrees Celsius (2.7 degrees Fahrenheit) — has shrunk by a third. The world has only six years left at current emissions levels before racing past that temperature limit.

“There are no technical scenarios globally available in the scientific literature that would support that that is actually possible, or can even describe how that would be possible,” Joeri Rogelj, a climate scientist at Imperial College London, told reporters in a call.

Tim Lenton, one of the co-authors on Ripple’s most recent paper and a professor of earth system science at the University of Exeter, said that 2023 has been filled with temperatures so far beyond the norm that “they’re very hard to rationalize.”

It wasn’t always this way.

In the 2000s and even early 2010s, most scientists shied away making any statements that could be seen as “political.” Jacquelyn Gill, a professor of climate science and paleoecology at the University of Maine, said that when she was doing her PhD in those years, senior academics warned her against deviating at all from the science when interacting with the media or the public.

Hassol said that the shift is simple. In the 2000s, she said, climate change wasn’t yet at the level of an emergency. She recalls a 2009 report called “The Copenhagen Diagnosis,” which analyzed climate science to date and made suggestions for how to reach net-zero carbon emissions. If world governments had acted swiftly, the world would have had to cut emissions only by a bit over 3 percent per year. “We called that the bunny slope,” Hassol recalled.

If, on the other hand, governments waited until 2020 to start the transition, cuts would have to be much steeper — up to 9 percent per year. “We called that the double-black diamond,” she said. Despite the brief respite in CO2 emissions during the pandemic, humanity’s trajectory has veered closer to the double-black diamond.

If my communication has gotten “more exasperated – and more desperate,” maybe this is why.

The degree to which forest fires are caused by fossil fuel-driven climate change

I happened to run across something that contradicts Bob Zybach’s repeated assertions that, “these fires have been clearly predicted by me and others because of USFS management policies and Wilderness designations and have zero to do with warming climate or drier fuels.”  The Union of Concerned Scientists calculated the effect of warming climate and drier fuels on burned area, and the result from their peer-reviewed analysis is not “zero.”

Climate change is causing hotter, drier conditions that are also fueling these increasingly large and severe wildfires. In particular, vapor pressure deficit (VPD), a measure of atmospheric “thirst,” has emerged as a key way of tracking how climate change is amplifying wildfires because of its role in regulating water dynamics in ecosystems and, together with rising temperatures, contributing to increasing dryness (Box 1).

UCS used a combination of data and modeling to determine how much the carbon emissions associated with 88 major carbon producers (hereafter, the “big 88”) have historically contributed to increases in VPD and burned forest area across the western United States and southwestern Canada (see Methodology).

Across western North America, the area burned by forest fires increases exponentially as VPD increases, which means that relatively small changes in VPD result in large changes in burned forest area. The observed rise in VPD has enabled a steep increase in the forest area that has burned across the region since the mid-1980s. Since 1986,1 a cumulative 53.0 million acres of forest area has burned across western North America as VPD has risen. Without emissions tied to the big 88, the rise in VPD would have been much smaller, and 33.3 million acres (IQR 27.7 million–38.5 million) would have burned (Figure 4). That means that 37 percent (IQR 26–47 percent) of the cumulative burned forest area from 1986 to 2021 is attributable to emissions from the big 88. This represents nearly 19.8 million acres of burned forest area, or an area roughly the size of Maine.

You can criticize UCS for being agenda-driven (and we’ve talked about the limitations of “burned area” as a metric), but I’d challenge Bob or others to provide a similarly peer-reviewed research paper that attributes fire effects to his chosen causes.

 

Undermining science to undermine renewable energy

 

We’ve talked a little about energy transmission, especially in conjunction with renewable energy production, and the need to improve the electrical grid.  One thought seems to be that conservation interests are a barrier to that.  It turns out that the coal industry may be an even bigger barrier.  At least, here’s an example from the Trump Administration.

The Seams study demonstrated that stronger connections between the U.S. power system’s massive eastern and western power grids would accelerate the growth of wind and solar energy—hugely reducing American reliance on coal, the fuel contributing the most to climate change, and saving consumers billions.

But a study like Seams was politically dangerous territory for a federally funded lab while coal-industry advocates—and climate-change deniers—reign in the White House.

According to interviews with five current and former DOE and NREL sources, supported by more than 900 pages of documents and emails obtained by InvestigateWest through Freedom of Information Act requests and by additional documentation from industry sources, Trump officials would ultimately block Seams from seeing the light of day. And in doing so, they would set back America’s efforts to slow climate change.

The fallout was swift: The lab grounded Bloom and Novacheck (the lead researchers), prohibiting them from presenting the Seams results or even discussing the study outside NREL.  And the $1.6 million study itself disappeared. NREL yanked the completed findings from its website and deleted power-flow visualizations from its YouTube channel.

If NREL researchers are able to work unencumbered by political concerns and release Seams in its entirety, it could help point the U.S. toward a greener future, in which a robust economy runs on renewable energy. But for now, Seams is demonstrating an unintended finding—that when administrations stick their hands into scientific research, politically inconvenient truths are in peril.

The author indicated later that Congress had demanded that the study be released (and here it is).

This story is another example of political interference in science production and distribution.  I remain a strong skeptic that the pro-environment side can match this kind of interference by the coal lobby and “climate-change deniers” (as some have suggested here, including self-proclaimed climate-change “skeptics”).  It also seems obvious that this direct intervention is a lot more influential than any bias that exists in research funding.

Climate change in the courts – a win for Montana youth plaintiffs

I mentioned this Montana lawsuit in an earlier litigation update since it was going to be the first case going to trial nationally involving youth plaintiffs demanding action on climate change in a state court.  Since then, we’ve been debating climate science a little here, so here’s an update.  The trial happened and the court ruled in favor of Plaintiffs on one claim (2023.08.14-Held-v.-Montana-victory-order):  a recent change in Montana’s environmental policy act (MEPA), which prohibited consideration of impacts on climate for proposed projects, “violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional.”  The state also failed to show that “the MEPA limitation serves a compelling government interest.”

The Montana state constitution includes this specific right, so the applicability of this outcome elsewhere is uncertain, but Plaintiffs’ attorneys (who are representing youth plaintiffs in other climate cases) are optimistic that it may provide some momentum.

The Washington Post had an interesting take on factual questions related to climate change:

In a pivot from its expected defense disputing the climate science behind the plaintiffs’ case, the state focused instead on arguing that the legislature should weigh in on the contested law, not the judiciary.

Michael Gerrard, the founder of Columbia’s Sabin Center, said the change in strategy came as a surprise: “Everyone expected them to put on a more vigorous defense,” he said. “And they may have concluded that the underlying science of climate change was so strong that they didn’t want to contest it.”

The state’s defense was unsuccessful. Judge Kathy Seeley determined that the state’s emissions could be fairly traced to the legal provision blocking Montana from reviewing the climate impacts of energy projects. She further wrote that the state’s emissions and climate change have caused harm to the environment and the youth plaintiffs.

If the WaPo article isn’t viewable, here’s another with more background on the case.

(It was interesting when I looked for a meme to include with this post – they seem to be dominated by not-very-clever climate change denialism.)

Are large, eastside grand firs friend or foe?

Large-diameter grand fir (Abies grandis) in a mesic, mixed-conifer forest of northeast Oregon. Credit: Conservation Science and Practice (2023).

A new release from a some of our favorite authors about the proposed amendment to the Oregon and Washington Eastside Screens forest plan requirements – the “21-inch rule.”  The primary focus is summarized here (and there is a link to the research paper):

“Interest is growing in policy opportunities that align biodiversity conservation and recovery with climate change mitigation and adaptation priorities. The authors conclude that “21-inch rule” provides an excellent example of such a policy initiated for wildlife and habitat protection that has also provided significant climate mitigation values across extensive forests of the PNW Region.”

Until I saw this photo, I had imagined an army of evil grand fir trees sneaking up under pines and larch, and stealing their water and threatening to burn them up.  They seem to be the Forest Service’s Enemy #1 these days in eastern Oregon and Washington.  So dangerous, in fact, that the agency undertook another dreaded forest plan amendment process to give the agency more weapons to fight off this scourge.

This paper portrays them in a much different light, as providing benefits to both carbon storage and resilience to fire (along with their original wildlife protection benefits targeted by the original Eastside Screens amendment) – and NOT posing a substantial barrier to fuel treatment.

“The key rationale for amending the 21-inch rule is that increased cutting of large-diameter fir trees (≥53 cm DBH and <150 years) is needed to facilitate the conservation and recruitment of early-seral, shade-intolerant old ponderosa pine (Pinus ponderosa) and western larch (Larix occidentalis) by reducing competition from shade-tolerant large grand fir (Abies grandis) (USDA, 2021).

This represents a major shift in management of large trees across the region, highlighting escalating tradeoffs between goals for carbon sequestration to mitigate climate change, and efforts to increase the pace, scale, and intensity of cutting across national forest lands. The potential impacts of removal of large grand fir on wildfire are unclear, although a trait-based approach to assess fire resistance found that the grand fir forest type had the second highest fire resistance score, and one of the lowest fire severity values among forest types of the Inland Northwest USA (Moris et al., 2022).

Large ponderosa pine co-mingle with large grand fir about 14% of the time (259 plots), leaving 86% of plots with large ponderosa pine without large grand fir (1616 plots). Similarly, large western larch co-mingle with large grand fir about 56% of the time. Large ponderosa pine and grand fir are found together on only 8% of all plots in the region, while large larch and grand fir are found together on only 4% of all plots in the region.  (I added the emphasis for clarity.)

Enhancing forest resilience does not necessitate widespread cutting of any large-diameter tree species. Favoring early-seral species can be achieved with a focus on smaller trees and restoring surface fire, while retaining the existing large tree population.”

If nothing else, these conclusions clearly refute the Forest Service argument that reducing fire risk is “impossible” without logging the few (but important) large grand fir trees.

A Framework for Federal Scientific Integrity Policy and Practice

The 2021 Presidential Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking charges the Office of Science and Technology Policy to (1) review agency scientific integrity policy effectiveness and (2) to develop a framework for regular assessment and iterative improvement of agency scientific integrity policies and practices (Framework). In January, the Biden Administration released the Framework. It includes a “first-ever Government-wide definition of scientific integrity,” a roadmap of activities and outcomes to achieve an ideal state of scientific integrity, a Model Scientific Integrity Policy, as well as critical policy features and metrics that OSTP will use to iteratively assess agency progress.  Here is that definition:

Scientific integrity is the adherence to professional practices, ethical behavior, and the principles of honesty and objectivity when conducting, managing, using the results of, and communicating about science and scientific activities. Inclusivity, transparency, and protection from inappropriate influence are hallmarks of scientific integrity.

The 2021 Presidential Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking also charges OSTP and NSTC to “review agency scientific integrity policies and consider whether they prevent political interference in the conduct, management, communication, and use of science …”  The “Model Scientific Integrity Policy for United States Federal Agencies” says this:

It is the policy of this agency to: 1. Prohibit political interference or inappropriate influence in the funding, design, proposal, conduct, review, management, evaluation, or reporting of scientific activities and the use of scientific information.

Ensure that agency scientists may communicate their scientific activities objectively without political interference or inappropriate influence, while at the same time complying with agency policies and procedures for planning and conducting scientific activities, reporting scientific findings, and reviewing and releasing scientific products. Scientific products (e.g., manuscripts for scientific journals, presentations for workshops, conferences, and symposia) shall adhere to agency review procedures.

It defines these terms:

Political interference refers to interference conducted by political officials and/or motivated by political considerations.

Inappropriate influence refers to the attempt to shape or interfere in scientific activities or the communication about or use of scientific activities or findings against well-accepted scientific methods and theories or without scientific justification.

I found it rather interesting, given the way the these terms are used, that the 2021 Presidential Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking actually says this:

Improper political interference in the work of Federal scientists or other scientists who support the work of the Federal Government and in the communication of scientific facts undermines the welfare of the Nation, contributes to systemic inequities and injustices, and violates the trust that the public places in government to best serve its collective interests.

Executive departments and agencies (agencies) shall establish and enforce scientific-integrity policies that ban improper political interference in the conduct of scientific research and in the collection of scientific or technological data, and that prevent the suppression or distortion of scientific or technological findings, data, information, conclusions, or technical results.

Deliberate or careless?  Could there be “proper” political interference, especially given the distinction made about “inappropriate” influence (which is defined in terms of “interference”)?

Any way, it’s good to know someone is working on this aspect of scientific integrity.  And it seems to be helping – compare these results of the Union of Concerned Scientists 2023 surveys of scientists at federal agencies with those from 2018.  (Unfortunately, while the 2023 survey includes USDA, it did not include the Forest Service.)

Recent forest plan litigation

Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.

Flathead court decision

The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout.  The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements.  The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects.  I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.

This article quotes the judge on the crux of the case regarding grizzly bears:

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Additionally, the article continues:

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.

A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.

This article quotes timber industry intervenors:

“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.

Colville new lawsuit

There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.

One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.”  The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.

The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):

The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.

Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.

The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.

The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.

It’s great that they actually projected the amount of late forest structure.  Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions.  I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing).  The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?

The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.

This is an important interpretation of what they think their forest plan requires.  Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.

Practice of Litigation Friday: Fire in Pacific Fisher Habitat

U. S. Fish and Wildlife Service

This recently filed case (the complaint is at the end of the article) hasn’t generated a lot of news coverage, but it directly raises some of the questions we have discussed at length about the effects of fuel reduction activities.

On March 26, 2021, three California conservation groups filed a complaint for declaratory judgment and injunctive relief against the Forest Service and Fish and Wildlife Service in the federal district court for the Eastern District of California (Unite the Parks v. U. S. Forest Service).  They are challenging, “the failure … to adequately evaluate, protect, and conserve the critically endangered Southern Sierra Nevada Pacific fisher … on the Sierra, Sequoia, and Stanislaus National Forests …” after a substantial reduction in habitat since 2011 resulting from a multi-year draught, significant wildfires and Forest Service vegetation management.  Many of the variables considered in a prior 2011 analysis have been adversely affected by these changes. The plaintiffs implicate 45 individual Forest Service projects.

This fisher population was listed as an endangered species on May 15, 2020, and the agencies conducted “programmatic” consultation at that time on 40 already-approved projects.  The agencies reinitiated consultation because of the 2020 wildfires, but did not modify any of the projects.  The purported rationale is that the short-term effects of the vegetation management projects are outweighed by long-term benefits, but plaintiffs assert, “There is no evidence-based science to support this theory…,” and “the agencies ignored a deep body of scientific evidence concluding that commercial thinning, post-fire logging, and other logging activities conducted under the rubric of ‘fuel reduction’ more often tend to increase, not decrease, fire severity (citing several sources, emphasis in original).  The complaint challenges the adequacy of the ESA consultation on these projects, and the failure to “prepare landscape-level supplemental environmental review of the cumulative impacts to the SSN fisher…” as required by NEPA.

Not mentioned in the lawsuit is the status or relevance of forest plans for these national forests, two of which (Sierra and Sequoia) are nearing completion of plan revision.  However, the linked article refers to an earlier explanation by the Forest Service that they would not be making any changes in the revised plans based on the 2020 fires because they had already considered such fires likely to happen and had accounted for them.  ESA consultation will also be required on the revised forest plans, and should be expected to address the same scientific questions, arguably at a more appropriate scale.  Reinitiation of consultation on the existing plans based on the changed conditions should have also occurred under ESA.  (This is another area where legislation has been proposed to excuse the Forest Service from reinitiating consultation on forest plans, similar to the “Cottonwood” legislation that removed that requirement for new listings or critical habitat designation.)

(And in relation to another topic that is popular on this blog, Unite the Parks also supports the establishment of the Range of Light National Monument in the affected area.)