Congress

Breaking news – Republicans break federal land management

by

 

(from Inside Higher Ed)

FUTURE LITIGATION?

On April 16, the U. S. Senate voted 50-49 to invoke the Congressional Review Act to overturn a 20-year ban on mining on more than 225,000 acres of the Superior National Forest upstream of the Boundary Waters Canoe Area Wilderness.  The President is expected to sign it.  Under the CRA, federal agencies must submit new regulations to Congress before they can take effect.  If Congress disapproves by a simple majority, the agency can never issue another rule “in substantially the same form.”

This is the first time Congress has used the CRA to overturn a management decision on national forest land, although the ban on mining was in a public land order mineral withdrawal. by the Secretary of the Interior. The title of the joint resolution is:

“H.J.Res.140 – Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Bureau of Land Management relating to Public Land Order No. 7917 for Withdrawal of Federal Lands; Cook, Lake, and Saint Louis Counties, MN.”

While this resolution describes the Secretarial Order as a “rule,” federal land management agencies have never considered their land management decisions to be regulations, and so have never submitted them for congressional review, apparently leaving them vulnerable to review now.   Last year, Congress employed the CRA to invalidate several BLM resource management plans.  We discussed that here.

During the CRA’s first 20 years of existence, it was used only once. But President Trump and Republicans have worked to dramatically expand and weaponize the CRA.  It appears the current Congress sees no limits to what kinds of agency decisions it may review and reverse.  It’s not hard to imagine the chaos this could cause for federal land management, especially with regard to land management plans.  Plans revised (and presumably amendments) after the passage of the CRA in 1996 would be vulnerable.  Another example, Republican Senator Mike Lee of Utah has proposed a CRA resolution to eliminate the resource management plan for the Grand Staircase Escalante National Monument.

Potential litigants are circling, one referring to the situation as “extraordinarily legally questionable.” Our prior discussion touched on the question of how a lawsuit might arise.

“The U.S. Forest Service is 100 percent opposed to mining in this watershed,” said Marc Fink, director of the Public Lands Law Center and a senior attorney for the Center for Biological Diversity. In 2016, the Forest Service determined that a sulfide-ore copper mine, such as the one Twin Metals is proposing, could cause “extreme” and “serious and irreplaceable harm” to the area. “This clearly goes against the science and the administration’s own agencies,” Fink said.

 

Chief Schultz’s vision

by

The first Chief of the Forest Service with no experience working for the Forest Service gave a keynote speech at a policy summit for the all-GOP Congressional Western Caucus, a gathering of Republican members of Congress in Whitefish, Montana on August 19.  I’m not sure how widely this has been reported but these excerpts are from reporting in the Missoulian., which is probably paywalled.  (Indents are quotes from the Missoulian, quotes are the reported words of the Chief.)

… he left few doubts about the agency’s priorities under President Donald Trump.

“We’ve seen this happen throughout the West,” he said. “… We pulled back as an agency over time, and then what happens? The industry goes away. The jobs go away. The education declines. People become addicted to different things.”

“We’re going to manage for minerals management, we’re going to manage for active forest management, grazing management,” Schultz said. “We’re looking at recreation, how we encourage and increase access, even to the existing lands we have. I met with the recreation community, the motorized folks here just a few weeks ago.”

That’s (recent personnel actions) left the Forest Service with a 25% loss of permanent full-time staff who don’t primarily fight wildfires — 5,200 workers, Schultz confirmed in an interview outside the event. And he acknowledged that some of those losses include the types of expertise needed to plan and implement logging projects on federal forest lands.

“We did have people that had that expertise that left,” Schultz told the Missoulian. “They were close to retirement and they left, but what I’m excited about is the people that are here really want to be here, I mean there are a lot of dedicated Forest Service people.”

“In terms of the firefighting effort, we have 11,400 firefighters grade GS 9 and below that are currently on staff, which is what we’re supposed to have,” Schultz told the Whitefish audience on Tuesday. “So when you’re hearing people saying we don’t have firefighting resources, that’s not accurate.”

“There’s still going to be a footprint in Missoula, we haven’t decided exactly how that’s going to function yet,” he said. “… So it could be fire, it could be other things. We haven’t figured everything out there just yet.”

“If there is no certainty from government, industry cannot function,” he said.

It’s not clear whether the “firefighters” he referred to that are “what we are supposed to have” includes those regular employees activated for fires.  I’ll only comment that the multiple uses of fish and wildlife and non-motorized recreation were NOT among the things “we’re going to manage for” (or apparently for “addictions” either).  And it’s kind of laughable for this administration to talk about “certainty in government” being necessary (unless this administration plans on never leaving).  Less snarkily, lack of certainty has always been an issue for federal timber supply and it would be interesting to see what they have in mind to change that.  Not hard to believe they “haven’t figured everything out.”

Oh, and for employees who are “really wanting to be here,” see the new hiring questions  (and trust that this Administration won’t use this as “an ideological litmus test on candidates” taking precedence over their professional skills).

 

Does the Congressional Review Act apply to federal land management plans?

by

House Republicans this week are expected to weigh in on BLM resource management plans in Alaska, North Dakota and Montana, where the GAO has found them to be subject to the Congressional Review Act.  Pursuant to the CRA, any “rule” can be reversed by Congress and the president using this procedure.  The CRA requires that agencies report their rules to Congress and provides special fast-track procedures under which Congress can consider legislation to overturn those rules. The definition of “rule” is broader than formal regulations, but it has exceptions that might apply to something like agency plans for federal lands:

  • any rule relating to agency management or personnel; or
  • any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

In 1997, the General Accounting Office determined that the Tongass National Forest Land and Resource Management Plan was a rule for the purpose of the CRA.  However, Congress did not act to reverse this decision.

Use of the CRA seems to depend on the GAO of the current administration.  The GAO applied the Tongass reasoning and conclusion to USDI in 2017.  Then, at the end of the Biden Administration, USDI had this to say about BLM plans:  “RMPs have never been considered rules by the Department of the Interior (Department) or any reviewing court.”  This letter provides the analysis leading to that conclusion.

The same letter pointed out the perverse effect of using the CRA for agency land management plans:  “the CRA’s prohibition on issuing a rule ‘… in substantially the same form’ could have extremely far-reaching consequences for BLM plans that make hundreds of overarching allocation decisions across millions of acres …”

Land management plans are not typically presented to Congress by the agencies as rules subject to the CRA (including these BLM plans), and Congress has apparently never applied the CRA to federal land management plans.  If that is done here, it’s not hard to imagine it showing up in a future federal lands litigation update.

A similar effort in Colorado is proceeding outside of the CRA parameters.

 

House of Representatives v. BLM – monuments and the public lands rule

by
Grand Staircase – “visitutah.com” (Larry C. Price)

Dismissal of a lawsuit against President Biden’s proclamation restoring the boundaries of the Grand Staircase and Bears Ears national monuments allows the NEPA process to develop a management plan for these areas to proceed unhindered.  Biden ordered the BLM to work on replacing the Trump Administration’s resource management plan, and the BLM published its draft RMP on August 11 for public comment.

BLM may proceed unhindered, that is unless Congress decides to hinder them.  The FY2024 Interior, Environment, and Related Agencies Bill the House Appropriations Committee passed in July, which the full House of Representatives is expected to vote on in September, includes a rider that would require the BLM to manage the Grand Staircase NM in accordance with the plan finalized after Trump reduced the monument.

Which is the better planning process – RMPs based on public involvement through NEPA or RMPs based on appropriations riders?

The bill would also deny funding to implement the BLM’s public lands rule (a popular topic with many posts here from Sharon).  Another bill would force BLM to withdraw the rule (without considering all those public comments).

Kya Marienfeld, wild lands attorney for SUWA, called the Utah congressional delegation’s lack of support for the state’s public lands disappointing but adds that opposition is offset by more enlightened members of Congress who actively support the Grand Staircase and other public lands.

Appropriation riders seem to be kind of crap-shoot in the turmoil of budget negotiations, so I have no idea what the betting line would be on President Biden signing off on this one.  The “more enlightened members of Congress” may have more of an influence on defeating the withdrawal proposal.  Is that a bad thing?

 

 

More Federal Firefighters Moving On

by

https://www.nbcnews.com/news/us-news/firefighters-are-leaving-us-forest-service-better-pay-benefits-rcna93689

“The situation has grown so dire that the San Bernardino National Forest in Southern California saw 42 resignations in 48 hours in May, officials said.”

 

I guess we’ll see Congress extend the extra pay, but the firefighters want other issues addressed, too.

New (revived) weapon to attack the “deep state” (aka federal employees)

by
Image: CrowD Games

Maybe the less that’s known about this the better, since it could be intimidating, but it’s unlikely to be used for two years any way, and even when the Republicans had the power to use it before they couldn’t, but I think it’s relevant to discussions we sometimes have about the “political” nature of federal agency decisions.  This would be that on steroids.  I’ve excerpted much of this Washington Post article:

GOP revives rule allowing lawmakers to target federal agencies, staffers

The rules package House Republicans approved late Monday (January 9) includes a provision allowing lawmakers to reduce or eliminate federal agency programs and to slash the salaries of individual federal employees.

Called the Holman Rule, the measure was proposed in 1876 but was sparingly used until it was reinstated by Republicans in 2017 and then dropped by Democrats two years later. In theory, it could apply to any federal worker or agency — but for now the move is seen as mostly symbolic, as the Democratic Senate could block Republicans from using the provision.

The rule is named for a House member who proposed it nearly 150 years ago as an exception to the general practice of keeping policy decisions separate from spending decisions

One attempt … in 2018, would have reduced to $1 the pay of a federal employee in charge of an office that had been the subject of whistleblower complaints; opponents called the move an attempt to punish without due process one individual who was involved in a wide-ranging dispute.

Even if an attempt to use the rule is ultimately blocked, though, “It’s the potential use that makes it so concerning,” said Max Stier, president and CEO of the nonpartisan Partnership for Public Service. “If you’re a federal employee, this now becomes a risk that you have to think ‘I may get myself in hot water or have my salary dropped to zero or my job could get axed’” when making a professional decision.

“Symbols can cause harm. We need a workforce that is committed to the public good and feels safe to make that choice. That’s what’s at risk here,” he said.

Republicans have embraced the Holman Rule as part of the party’s aggressive stance toward the federal government, including President Donald Trump’s attempts to create new job classifications that would make it easier to fire government workers and his decision to move federal agencies like the Bureau of Land Management out of D.C.

During the House floor debate, Rep. Kat Cammack (R-Fla.), an ally of House Speaker Kevin McCarthy (R-Calif.), blasted federal officials as “unelected bureaucrats, the true, real swamp creatures here in D.C.,” saying they had “run roughshod over the American people without consequence.”

Democrats and union leaders, though, denounced the rule’s revival as an opening for the GOP to attack federal agencies and the people working in them for political reasons. Democrats warned that Republicans could abuse the power to lessen federal workers’ salaries or fire them outright — particularly at a time when the government is investigating former president Donald Trump.

Republican backers on Monday, though, said that reinstating the rule would provide an important check on the federal government.Rep. Chip Roy (R-Tex.) — a member of the conservative House Freedom Caucus — said the Holman Rule would “restore the people’s House” in the face of administrative action.

“I think it’s another intimidation tool for civil servants who are simply doing their job,” said Rep. Gerald E. Connolly (D-Va.) in an interview. “It is designed to provide a chill effect on the ability of civil servants to do their jobs and carry out enforcement regulations and compliance with the law.”

“The whole point of it is to use it recklessly. There’s no way to use it responsibly,” said the public policy director of the American Federation of Government Employees, Jacqueline Simon. “It goes around everything that protects the civil service from political corruption — not just federal employees but entire agencies.”

Wildfire, Carole King and an Urban Majority House Committee- Tomorrow!

by
From the national presentation as part of the NFF roundtables.

Bill Gabbert at Wildfire Today has a helpful post with links on the Congressional hearing tomorrow on wildfire.

Remembering that Congressional Hearings are political theater.. it’s only appropriate that Carole King will be talking about how to deal with wildfires.   I guess the only witnesses who have worked directly with fire suppression are Chief Moore (they had to ask him, I guess) and the (one) minority witness, Jim Hubbard. Not a good look, majority. Not to disrespect TEK or scientists.

Here’s the witness list:
Mr. Randy Moore
Chief, U.S. Forest Service
U.S. Department of Agriculture

Panel II

Ms. Carole King
Celebrated Singer-songwriter, Land Conservation Advocate

Ms. Ali Meders-Knight
Mechoopda Tribal Member
Traditional Ecological Knowledge Practitioner

Dr. Michael Gollner
Associate Professor of Mechanical Engineering
University of California, Berkeley
Deb Faculty Fellow
Berkeley Fire Research Lab

Dr. Dominick A. DellaSala
Chief Scientist, Wild Heritage
Project of Earth Island Institute

Mr. James Hubbard (minority witness)
Former Under Secretary, Natural Resources and Environment
Department of Agriculture

I thought that this was rather odd:

While wildfires are an important part of maintaining healthy forest ecosystems, careful prevention work is crucial to mitigating the damage from increasingly dangerous fires.  The hearing will examine several strategies the Forest Service employs to prevent wildfires including prescribed burns, thinning, and commercial logging, as well as the challenges the Forest Service faces, such as a tight budget and an influential commercial logging industry.

I wonder how exactly the commercial logging industry is a problem.. for those of us in Colorado and the SW, a lack of logging industry is a problem, let alone an influential one. If you look at the map above, you’ll see lots of firesheds at risk with minimal timber industry. Santa Rosa, Santa Cruz, LA, San Diego, the Front Range of Colorado, around Santa Fe, Albuquerque and so on.

But perhaps members of the House Committee on Oversight and Reform Environment Subcommittee aren’t familiar with these areas. Let’s look at the composition of the majority..

Ro Khanna, California, Chair- representing Silicon Valley
Jim Cooper, Tennessee – Nashville
Alexandria Ocasio-Cortez, New York City
Rashida Tlaib, Detroit
Jimmy Gomez, LA
Raja Krishnamoorthi, Chicago
Cori Bush, St.Louis

Well then.

Then there’s the fact that this is usually the biz of the Natural Resources Committee, so it seems unlikely that this will yield anything substantive.

But maybe these folks will learn something about our world (she said optimistically). Might  be interesting.

Trillion Trees and Natural Carbon Storage Act

by

We’ve been talking about developing an actual carbon policy for forest management.  Republicans have been willing to concede that planting trees would be beneficial, but others say that is not enough.  We now have a more comprehensive bipartisan legislative proposal that is getting some attention – The Trillion Trees and Natural Carbon Storage Act.  According to the Washington Post, “The forestry proposal is the first to emerge from the Climate Solutions Caucus, which Coons and Braun launched a little more than a year ago.”  It “directs the U.S. Forest Service to set goals for how much carbon the forests, grasslands, wetlands and some coastal areas should sequester from the atmosphere.”

According to sponsor Senator Young (R-IN), among the things it would do is:

  • Requires that USDA establish objectives for increasing the net carbon stock of American forests, grasslands, wetlands, and coastal blue carbon habitats.

Young’s website provides a link to the bill.  The specific language applicable to the Forest Service is to establish within two years, “objectives for increased net carbon stock for the forest, grassland, wetland, and coastal blue carbon habitat ecosystems of the United States that are owned or managed by the Federal Government.” The objectives “shall be established at levels that assist in achieving (A) the optimally feasible and ecologically appropriate increase in the total net carbon stock.” Those objectives, “shall be based on information relating to the maintenance or restoration of the ecological integrity of the ecosystems described in subsection (a), including maintaining or restoring ecologically appropriate forest, grassland, wetland, and blue carbon habitat structure, function, composition, and connectivity…”  That sounds like it is straight out of the 2012 Planning Rule.  There is no mention of national forest planning per se in the bill, but it is hard to see any other vehicle for implementing this policy and these objectives on national forests.

Young’s website also states that, “This legislation is supported by The Nature Conservancy, National Wildlife Federation, Environmental Defense Fund, World Wildlife Fund, National Audubon Society, Bipartisan Policy Center, American Forest Foundation, American Conservation Coalition, National Association of State Foresters, Conservation International, and Citizens for Responsible Energy Solutions.”

According the Environmental Defense Fund, it “follows recommendations from climate scientists and nonprofit organizations to focus on measuring climate impact instead of number of trees planted.”  EDF’s summary:

  • Expand existing U.S. Forest Service carbon accounting to include grasslands, wetlands and coastal ecosystems, in addition to forests.
  • Ensure that forests and other ecosystems will be valued not only for harvested materials, but also for important climate mitigation functions.
  • Measure progress using “net carbon stock,” a metric that reflects the dynamic nature of ecosystems and how carbon stores can grow or shrink over time.
  • Direct the Forest Service to share expertise, including technical capacity to increase carbon stored in urban forests, with states and recipients of U.S. foreign aid.
  • Provide funding to alleviate the nation’s 1.3-million-acre backlog of reforestation projects.

One section of the bill intends to provide financing “to facilitate the sale of credits in the voluntary carbon market or other recognized environmental market…”  However (as described in the same Washington Post article linked above), carbon offsets have become an issue in relation to the nomination of Mary Nichols, the longtime head of the California Air Resources Board, to be the new director of the Environmental Protection Agency.

One central point of contention is her achievement of California’s cap-and-trade program for greenhouse gas emissions. The program allows companies to offset harmful emissions by paying for forestation or other projects that decrease gases elsewhere. But opponents say it amounts to a license to pollute with poor and minority communities bearing the brunt of environmental harms.

Carbon has also come up in relation to the nomination of Tom Vilsack to be USDA Secretary.  The chance to work on Biden’s climate agenda may have made the job more attractive for Vilsack to return.  Carbon seems to offer an interesting opportunity for the USDA to actually unite its agricultural and forestry forces behind a common goal.

Forest plans and legislation – Blackfoot-Clearwater wilderness proposal

by
Blackfoot-Clearwater Stewardship Project map, Feb. 2018.

Wilderness designation has always been controversial in Montana.  No new wilderness areas have been established by Congress since I believe 1977, and unlike most states there has never been statewide wilderness legislation.  The Blackfoot-Clearwater proposal to designate 90,000 acres on the Lolo National Forest was locally developed and has been pending in Congress for several years.  Its development included addressing issues related to motorized and mechanized recreation that we have been discussing here, and designates areas for both.  This article provides some background, and includes a link to the written statement from the Forest Service regarding the proposed legislation.

The statement relates to forest planning in a couple of ways.  First, the Forest Service uses the Lolo National Forest forest plan as the foundation for its position on the legislation.

We also have concerns about implementing section 202, which establishes the Spread Mountain Recreation Area for the apparent purpose of enhancing mountain biking opportunities. The Lolo’s current land and resource management plan identifies this area as recommended wilderness. This area is characterized generally by steep topography, sensitive soils, and contains sensitive fish and wildlife habitat. Trail 166 is the main access into this area. This trail is not maintained, not passable by riders on horseback, and becomes difficult to locate after the first mile. While we acknowledge the interest in expanding opportunities for mountain biking on the Lolo, we are concerned that the site designated for the Spread Mountain Recreation Area is not well-suited for this use, and that this designation could create conflicts with wildlife and other recreation uses.

Two of the three wilderness designations in Title III are consistent with the recommendations made in the existing Lolo National Forest land and resource management plan. The third designation (West Fork Clearwater) was not recommended in the management plan to be Wilderness, it was allocated to be managed to optimize recovery of the Grizzly Bear.

One might argue that the 1986 forest plan is outdated, and recent local efforts should be given greater consideration.  However, those efforts have not been through any formal public process, so I commend the Forest Service for using its forest plan.  I’m not sure whether NFMA’s consistency requirement applies to taking positions on legislation, but it is probably the right place to start.  The proposal is also interesting in its legislative designation of two “recreation areas,” taking these decisions out of the forest planning process.

The Lolo is scheduled to begin its forest plan revision process in 2023, and the Forest Service is also concerned about the interaction between the revision process and this legislation.  It sounds like mostly a budgetary concern:

Our primary concerns pertain to Title II. Section 203 which would require the Forest Service to prepare a National Environmental Policy Act analysis for any collaboratively developed proposal to improve motorized and non-motorized recreational trail opportunities within the Ranger District within three years of receipt of the proposal… If passed in its current form, this bill could require recreation use allocation planning for site-specific portions of the Seeley Lake Ranger District ahead of the broader plan revision process, which would forestall the Lolo’s ability to broadly inform land use allocations across the forest through the plan revision process… If enacted, the explicit timeframes currently contained in the bill could result in prioritizing the analysis of a collaboratively developed proposal to expand the trail system over other emergent work.

But they might also be suggesting that the site-specific recreation planning would benefit from waiting until the forest plan is revised.  (Or maybe they just don’t like deadlines.)

Texas congressional delegation wants federal oil & gas leasing to fire up in the state

by

From the Forest Service scoping notice:

The National Forests and Grasslands in Texas (NFGT) is initiating the preparation of an environmental impact statement (EIS). The EIS will analyze and disclose the effects of identifying areas as available or unavailable for new oil and gas leasing. The proposed action identifies the following elements: What lands will be made available for future oil and gas leasing; what stipulations will be applied to lands available for future oil and gas leasing, and if there would be any plan amendments to the 1996 NFGT Revised Land and Resource Management Plan (Forest Plan).

The Forest Service withdrew its consent to lease NFGT lands from the Bureau of Land Management (BLM) for oil and gas development in 2016. The reason for the withdrawal of consent was due to stakeholder concerns, including insufficient public notification, insufficient opportunity for public involvement, and insufficient environmental analysis. There is a need to analyze the impacts of new oil and gas development technologies on surface and subsurface water and geologic resources; air resources; fish and wildlife resources; fragile and rare ecosystems; threatened and endangered species; and invasive plant management. There is also a need to examine changed conditions since the Forest Plan was published.

These leasing availability decisions are forest plan decisions that were most recently made in 1996.  The action proposed by the Forest Service would result in changes in the stipulations and would therefore require a forest plan amendment.  The changes would shift about 11,000 acres from “controlled surface use” to “no surface occupancy,” and remove timing limitations from about 35,000 acres.

A letter from five Republican members of the delegation disagrees with the premise that the 1996 analysis was inadequate, and is unhappy with the pace of the amendment process.

The published timeline anticipated a Draft EIS in the winter of 2019 with the Final EIS expected in the fall of 2020. We are concerned that this timeline is no longer achievable given current pace of progress.

We request that USFS end the informal comment period, issue a Draft EIS this spring and ultimately approve the Final EIS that reinstates BLM’s ability to offer public competitive leases of National Forest and Grasslands in Texas for oil and gas leases before the end of 2020. While USFS is required by law to respond to eligible comments received within the public comment window (CFR218.12), the Forest Supervisor also has the authority to declare the available science sound, conclude the public comment period, and proceed with the issuance of the scoping comments and alternative development workshops as the next steps ahead of a Draft EIS (CFR219.2.3, 219.3) (sic).

That last sentence got my attention as the kind of congressional attention to Forest Service decision-making that might cause them to cut a legal corner here or there (especially when there is an election coming).  I also noticed the absence of any reference to the new requirements for amendments, and maybe the delay could have something to do with this becoming evident to them as a result of scoping.  36 CFR §219.13(b)(6):

For an amendment to a plan developed or revised under a prior planning regulation, if species of conservation concern (SCC) have not been identified for the plan area and if scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether such species is a potential SCC, and if so, apply section §219.9(b) with respect to that species as if it were an SCC.

I found nothing in the EIS for the 1996 revision about effects of oil & gas development on at-risk wildlife species.  You’d think the new information since 1996 might have something to do with effects on climate change, too.