Congress

ESA lawsuits: fair and balanced

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Environmental litigants seem to be a favorite target these days of both Congressional hearings and criticism on this blog.  So after reading (here) about a recent lawsuit that led to DE-listing of species, I decided to look into what these anti-environmental plaintiffs were trying to accomplish with it.  What we have (here) is an exact mirror image of the litigation strategy to list species under ESA, and the same reason they won – failure to meet deadlines.

In this example, plaintiff’s reasons for de-listing have nothing to do with the species or restrictions resulting from the listing.  The species will still be protected.  As the other article says, the lawsuit was merely “symbolic.”  Harassment maybe.  Now wasn’t defending against it a good use of our tax dollars?

Just saying – it’s ok to talk about whether limiting litigation is a good idea, but let’s not suggest that judicial review inherently favors any particular position.

 

Science, Law, and the Press: Idealized vs. Real

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I’ve been thinking about how people use the terms “science” as in ” policies are better if they’re based on science”; and law as in “environmental laws are great because Congress made them, but if Congress messes with any of the case-law derived interpretations, that would be bad.”

It’s almost like there’s an idealized institution that people appeal to in some arguments, while sometimes ignoring or downplaying the realities of the institution. I think it will be helpful to talk about in future discussions how that plays out..for example, are Franklin and Johnson’s involvement with prescriptions on O&C lands making it “science.” What if it were two other scientists who developed a different prescription, would that still be “science”? It’s not hard to imagine other ecologist/economist pairs that could come up with other prescriptions.

Now, Congress’s messiness is laid out for the whole world to see through the press. But in my experience dealing with Forest Service projects wending their way through the system, I saw the “real” side of “science” (which I already knew about); the courts, and the press. Now I am not saying that any of them are any worse than any other; but they are all human and not perfect institutions. Human behavior in groups tends to be fairly similar and is not always perfect. When we talk about institutions, then, it seems to me, we should generally be talking about the institution as real and not as idealized.

Now people who are in the trenches on projects and see this firsthand, do not really have a voice. As agency folks, you are not allowed to question (in public) some of the issues or problems you see. For one thing, that might make powerful folks angry at the FS. For example, on one case, one of our attorneys said “we think the judge has the law wrong on this, but we won’t tell him because he is a young judge and we don’t want to have him biased against the FS for his career.” The fact that others critique the FS, but the FS can’t (usually) engage in meaningful public back and forth means that only one side is represented to the public, as we’ve discussed before.

Which also brings up that none of the feedback loops in the table allow for public discussion of claims and counterclaims, as we have on this blog. It’s too time-consuming, perhaps, but not having a place for that to occur seems to me to also be a problem. And we have to look at who is involved in the discussion and how members of the public get involved or not.

institutional feedback 2

I am interested in your thoughts on this table. One thing I thought we might be able to do on this blog, that might be helpful, would be to keep tabs on some of the journals and post relevant information on this blog so that these critiques are more available in the public sphere.

What do you think about the table? What would you change or add? What ideas does the table generate in your mind?

Largest “Dealbreaker” Ever?!?

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This may shock some readers but, I am actually against HR 3188. I don’t support any logging in Yosemite National Park, or in the Emigrant Wilderness, other than hazard tree projects. What is also pretty amazing is that others in the House have signed on to this bill. It seems like political “suicide” to go on record, being in favor of this bill. However, I am in favor of exempting regular Forest Service lands, within the Rim Fire, from legal actions, as long as they display “due diligence” in addressing endangered species, and other environmental issues. Did McClintock not think that expedited Yosemite National Park logging would be, maybe, the largest “dealbreaker” in history?

Here is McClintock’s presentation:

 HR 3188 – Timber Fire Salvage

October 3, 2013
Mr. Chairman:
I want to thank you for holding this hearing today and for the speedy consideration of HR 3188.
It is estimated that up to one billion board feet of fire-killed timber can still be salvaged out of the forests devastated by the Yosemite Rim fire, but it requires immediate action.  As time passes, the value of this dead timber declines until after a year or so it becomes unsalvageable.
The Reading Fire in Lassen occurred more than one year ago.  The Forest Service has just gotten around to selling salvage rights last month.  In the year the Forest Service has taken to plow through endless environmental reviews, all of the trees under 18” in diameter – which is most of them – have become worthless.
After a year’s delay for bureaucratic paperwork, extreme environmental groups will often file suits to run out the clock, and the 9th Circuit Court of appeals has become infamous for blocking salvage operations.
We have no time to waste in the aftermath of the Yosemite Rim Fire, which destroyed more than 400 square miles of forest in the Stanislaus National Forest and the Yosemite National Park — the largest fire ever recorded in the Sierra Nevada Mountains.
The situation is particularly urgent because of the early infestation of bark beetles which have already been observed attacking the dead trees.  As they do so, the commercial value of those trees drops by half.
Four hundred miles of roads are now in jeopardy.  If nearby trees are not removed before winter, we can expect dead trees to begin toppling, risking lives and closing access.  Although the Forest Service has expedited a salvage sale on road and utility rights of way as part of the immediate emergency measures, current law otherwise only allows a categorical exemption for just 250 acres – enough to protect just 10 miles of road.
By the time the normal environmental review of salvage operations has been completed in a year, what was once forest land will have already begun converting to brush land, and by the following year reforestation will become infinitely more difficult and expensive – especially if access has been lost due to impassibility of roads.  By that time, only trees over 30 inches in diameter will be salvageable.
Within two years, five to eight feet of brush will have built up and the big trees will begin toppling on this tinder.  You could not possibly build a more perfect fire than that.
If we want to stop the conversion of this forestland to brush land, the dead timber has to come out.  If we take it out now, we can actually sell salvage rights, providing revenue to the treasury that could then be used for reforestation.  If we go through the normal environmental reviews and litigation, the timber will be worthless, and instead of someone paying US to remove the timber, WE will have to pay someone else to do so.  The price tag for that will be breathtaking.   We will then have to remove the accumulated brush to give seedlings a chance to survive – another very expensive proposition.
This legislation simply waives the environmental review process for salvage operations on land where the environment has already been incinerated, and allows the government to be paid for the removal of already dead timber, rather than having the government pay someone else.
There is a radical body of opinion that says, just leave it alone and the forest will grow back.
Indeed, it will, but not in our lifetimes.  Nature gives brush first claim to the land – and it will be decades before the forest is able to fight its way back to reclaim that land.
This measure has bi-partisan precedent.  It is the same approach as offered by Democratic Senator Tom Daschle a few years ago to allow salvage of beetle-killed timber in the Black Hills National Forest.
Finally, salvaging this timber would also throw an economic lifeline to communities already devastated by this fire as local mills can be brought to full employment for the first time in many years.
Time is not our friend.  We can act now and restore the forest, or we can dawdle until restoration will become cost prohibitive.

What Rep Daines Mandated Logging Bill Would Mean for National Forests in Montana

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Here’s some new information to consider regarding Rep Doc Hastings (R-WA) and Rep Steve Daines (R-MT) mandated logging bill, the so-called “Restoring Healthy Forests for Healthy Communities Act” (HR 1526), which passed the US House on September 20.

In Montana, it’s estimated that Rep Daines’ mandated logging bill would result in a 6 fold increase in National Forest logging across the state. However, the logging mandates contained in Daines’ bill would impact each National Forest differently. As such, it’s estimated that Daines’ bill would result in:

•  300 X’s more logging on the Helena National Forest;
•  150 X’s more logging on the Lewis and Clark National Forest;
•  30 X’s more logging on the Beaverhead-Deerlodge National Forest;
•  13 X’s more logging on the Lolo National Forest;
•  7 X’s more logging on the Gallatin National Forest;
•  6 X’s more logging on the Kootenai National Forest; and
•  4 X’s more logging on the Flathead National Forest.

(Note: Compared with 2012 National Forest timber sale volumes)

These dramatic increases in logging would be achieved by undermining America’s public lands legacy by simply having members of Congress mandate dramatic increases in industrial logging by exempting all National Forest logging sales up to 15.6 square miles in size from public input, environmental analysis and gutting the Endangered Species Act.

Rep Daines’ “Logging Without Laws” bill also has the US Congress simply closing the US Federal Court House doors, forbidding any citizen lawsuits on certain types of industrial logging projects, which is inherently undemocratic. Daines’ bill applies to all of America’s 155 National Forests, not just those National Forests in Montana.

New information also reveals that, contrary to claims by Rep Hastings and Rep Daines, rural counties throughout America would get less money for roads and schools under the Hastings/Daines mandated logging bill than what they current receive through Secure Rural Schools funding.

While Rep Daines, Senator Tester (D-MT) and the timber industry claim “gridlock” prevents National Forest logging, between 2008 and 2012 the US Forest Service sold enough logging sales in Montana and North Idaho to fill over 239,000 logging trucks, which if lined up end-to-end, would stretch for 2,048 miles.

Fortunately, President Obama has threatened to veto Rep Daines mandated logging bill.  The battle now goes to the US Senate, which in theory should be against mandating huge increases in National Forest logging through “Logging Without Laws” and gutting the Endangered Species Act, limiting public input and environmental analysis.However, the fact that Senator Tester and Senator Baucus (D-MT) have their very own mandated National Forest logging bill (the Forest Jobs and Recreation Act) already introduced in the US Senate all bets are off and basically anything can happen in the Senate.

Certainly it doesn’t help the political situation that Sen Tester, Sen Baucus and groups like the Montana Wilderness Association, National Wildlife Federation and Montana Trout Unlimited also support politicians mandating huge logging increases of our National Forests through Tester’s Forest Jobs and Recreation Act (FJRA). Make no mistake, both the Daines and Tester bill would be an extreme and radical departure from over 100 years of America’s public lands legacy.Remember, Montanans have been bombarded since 2009 with a million dollar plus advertising and public relations campaign supporting Tester’s mandated logging bill paid for largely by the out-of-state Pew Foundation.

According to official tax forms, as far back as 2009 the Pew Foundation’s Campaign for America’s Wilderness actually hired the Montana Wilderness Association as an “Independent Contractor” to the tune of $304,500.00 in just 2009 alone. Montanans have also witnessed one-sided, down and pony show “public meetings” on Tester’s bill in which only hand-picked supporters of Tester’s bill were allowed to speak to the crowd. And who hasn’t noticed the dozens of canned, scripted Letters to the Editor (most of which from college students without a firm grasp on these issues) cheerleading for Congress to mandate more logging through Tester’s bill?

Let’s also not forget that all summer long we watched the Montana Wilderness Association spend some of their money on an Ad campaign making Rep Steve Daines (a “Tea Party” member of the House) out to be some great “bi-partisian” and encouraging Daines to work together with Senator Tester and Senator Baucus to support Tester’s mandated logging bill. Honestly, how good of a strategy is it to publicly encourage a “Tea Party” member of the US House to work together to support mandated logging of our public national forest lands? How naive must you be to actually think that getting Rep Daines involved with Tester’s mandated logging bill wouldn’t actually make Tester’s bill that much worse?

While the Montana Wilderness Association was busy all summer courting Rep Daines to be their new BFF not one single person from the Montana Wilderness Association (or any of the other environmental ‘collaborators’ supporting Senator Tester’s mandated logging bill) managed to uttered one single peep of protest, concern or opposition about Rep Daines’ very own mandated logging bill, which cuts the public process, NEPA analysis and effectivness of the ESA.

And what about the Montana Wilderness Association’s “timber mill partners” from their much lauded private “collaboration?” Do you think the Montana timber industry supports Rep Daines mandated logging bill? Of course they do! And one can assume the timber industry has no problem dropping Montana Wilderness Association like a bad habitat once the industry gets what they really wanted in the form of Rep Daines mandated logging bill.

In December 2009, as I sat in the US Senate’s Energy and Natural Resource’s Committee hearing room, I heard Montana Wilderness Association’s director Tim Baker (who is now Gov Bullock’s “Natural Resource Adviser”) tell the Committee that MWA wouldn’t support Tester’s bill is the logging mandates were removed. So too, Sun Mountain Lumber owner Sherm Anderson told the Committee the timber industry wouldn’t support Senator Tester’s mandated logging bill without the Wilderness acres. Well, looks to me like Montana’s timber industry has dumped MWA in front of Daines’ mandated logging bus. All is fair in love and legislation, I guess.

“Restoring Healthy Forests for Healthy Communities Act” (HR 1526)

• Creates a legally-binding public lands logging mandate with no environmental or fiscal feasibility limits, and reestablishing the discredited 25% logging revenue sharing system with counties that was eliminated over a decade ago.

• Public participation and Endangered Species Act protections would be severely limited in Rep Daines’ bill. The bill creates huge loopholes in NEPA and such biased ESA requirements that in practice these laws would almost never meaningfully apply. For example, any project less than 10,000 acres (that’s 15.6 square miles) would be categorically excluded from environmental analysis and public participation, and the Forest Service would be required to submit a finding that endangered species are not jeopardized by any project, regardless of its actual effect on the species.

• Rep Daines successfully attached an amendment to the bill that would forbid the US Federal Courts from ever issuing injunctions against Forest Service logging projects based on alleged violations of procedural requirements in selecting, planning, or analyzing the project.

• Another amendment successfully added to the bill has the US Congress closing the US Federal Court House doors for any national forest timber sale resulting from the 2013 wildfires. Essentially this results in “Logging Without Laws,” as one entire branch of the US Government (the Judicial branch) is forbidden from hearing this issue.

If you’d like more “policy-wonky” information about Daines’ mandated logging bill check out this fact sheet.

Senate Committee Hearing: Challenges and opportunities for improving forest management on federal lands

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A reader sent me this link: here’s his review:

Bill Imbergamo’s hit it out of the park with his oral and written testimony. I wanted to give him a hug.

Norm Johnson was awesome about the variable retention and science, children’s books, etc

Risch was spot-on also.

If you haven’t watched, I highly recommend it. VERY worthwhile investment of time.

So far I managed to get to a part where Wyden notes that NEPA “requires a strong stomach” or something equivalent, somehow I couldn’t find it when I went back..

There’s a great deal to think about here.. I am not as sanguine as the Chief about large landscape NEPA. If someone wants to, couldn’t they go to court after a big blow down or fire (or new climate models or ???) and ask for a redo on the basis of new information and changed conditions? Fundamentally, it would require a change with some folks giving up power, which people usually don’t do voluntarily. Especially those who really believe that they have the right perspective.

The Black Hills doesn’t have any of those ESA animals which are involved in all the Montana and other lawsuits.. is that a coincidence? Perhaps not as applicable as a person might think. I feel like the Administration likes to think things will be fine if collaboration is done and they do huge NEPA. I am a fairly optimistic person but I don’t see that changing, say, Mr. Garrity’s view on the couple of R-1 timber sales because the NEPA is at a larger scale.

The pilots have a great deal of attention and support, in terms of getting various barriers out of the way. Even if the pilots are successful, this does not necessarily predict that everyday kinds of work will be equally successful. My optimism tells me that we would get further by determining what the real barriers to active forest management are.

Anyway, there’s a lot here. What’s your favorite quote? Did you want to hug anyone?

Oregonian Editorial Board on Forest Roads

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While we’re waiting for the objections rule, thought I’d post a few miscellaneous items..

Here’s a link and below are some excerpts.

Forest owners, logging companies and those who value gainful employment won a significant victory Wednesday in the U.S. Supreme Court, which opined that logging roads are not point sources of pollution requiring discharge permits under the Clean Water Act. The lopsided, 7-1 decision reversed the 9th U.S. Circuit Court of Appeals, whose wisdom promised, warned Sen. Ron Wyden, D-Ore., in 2011, to “bury private, state and tribal forest lands in a wave of litigation.”

Party time, right?

Not quite. As important as the decision is for forest owners, some of them are keeping the bubbly on ice until Congress makes the long-standing policy challenged by environmental groups a matter of law. Can you blame them, given the determination of litigants to keep right on litigating and prodding?

and

Meanwhile, environmental lawyer Paul Kampmeier told The Oregonian’s Scott Learn last week, his organization, the Washington Forest Law Center, will keep right on “pushing EPA to do something …” And why not? As Kampmeier pointed out, “The court generally ruled that the ball’s in the EPA’s court.”

The most effective way to provide long-term security for forest owners is to change the law, as legislation sponsored during the last Congress by Wyden and others would do. Unfortunately, the legislation died despite gathering a bipartisan collection of sponsors. It deserves another shot.

This seems to be another of those “Congress should act” kinds of things…perhaps we need a grassroots movement for “Congress stepping up” in some of these areas? Perhaps a “sustainable forests and national forest communities” Manifesto?

Objections Rule to Be Released (?) and a Recap on “Contacting Your Representatives”

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This came across me email from the LM Tribune online here.

The U.S. Forest Service is changing the process by which citizens can challenge timber sales and other actions.

Under the new guidelines, which are expected to be unveiled this week, people who want to challenge agency actions will be required to fully participate in the public review process and file formal objections prior to forest supervisors making final decisions.

Some of you may remember that I wrote my Senators asking why this had been requested by Congress last year and still hadn’t been completed. That was part of the post here Paid Gladiators and Unpaid Peacemakers: There Must Be a Better Way.”

Here is what happened:

Senator Udall’s office first wrote back and said they received my email. In about six weeks they sent a copy of a letter they sent to the Chief asking about it and for the Forest Service to write me back (I expect this became “controlled correspondence”). I never heard from the Forest Service, but if the objections rule is coming out, that’s what I wanted. As I noted before, they had a place for natural resources in their drop down menu.

Senator Bennett’s office never wrote back to say they received my email. About a month and a half in they sent a form letter saying that they noted my concerns and would take them into consideration (which actually wasn’t the point). This office’s dropdown didn’t have a place for natural resources so I had to select “environment.” For the State of Colorado. Really.

They are both in the same party, so it appears that it’s not a partisan issue.
Ed had mentioned in a previous comment here

In response to your great suggestion about working with (talking to) our fed reps, I have to share from an Idaho perspective. As you likely know, Idaho has gone totally to the right, with extreme GOP control at all levels, county, school boards, House and Senate. OK, I accept that we of the other persuasion are vastly outnumbered.
But I have, on a few occasions, emailed my federal reps in DC. Their electronic sites are a real test of how determined you are to finish. Layer after layer of background and categories before you can insert your message. And you go through this again and again, each time you want to confer. Can’t help but wonder if all this preliminary junk is really intended to screen us out so we won’t “bother them”.
And knowing that I and “them” are so politically separated, my efforts are half-hearted. Tried the phone a few times, but again how many comments to some intern answering the phone are really passed accurately to the congressmen or senators. Doubtful.
A real challenge to be an environmental Democrat in Idaho.

I know some of the rural economic groups have training in working with elected officials and even trips to DC, I wonder if some information is written down that could be shared here about how to work with Congressional folk? The retired feds may have some pent-up desire for this… but in some cases it has to be them who will have to find solutions to the problems we’ve identified.

End of an Era?

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It’s not a surprise that the Forest Service is hiding their response to the sequestration. Simply put, modern projects treat more acres and cut numerous small trees. They cannot accomplish this work without temporary employees. My last year’s Ranger District currently has TWO permanent timber employees, and two others shared with another (larger) Ranger District. I wonder if our Collaborative funds will be returned to the Treasury if projects aren’t completed.

I guess the only way to find out how bad it will be is to welcome the collapse, then decide how to fix it. Meanwhile, the best of the temporaries will find careers (or jobs) elsewhere, and they won’t be coming back. It is hard enough to live on just 6 months of work, each year.

New Subcommittee on Public Lands and Environmental Regulation

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US President Obama receives a standing ovation as he addresses a Joint Session of Congress on Capitol Hill in Washington

Previously we had stayed away from Congress, and partisan politics on this blog because of its tendency to promote, and my personal low tolerance for, dishonesty and mean-spiritedness. However, I am beginning to think that we may be called, in some, perhaps minor, way to help with those tendencies in our own little corner of the world. And through the years, I think we have proven that we can talk about contentious topics without demonizing people who disagree. Hopefully we can share our opinions about the ideas and legislation, but leave off the nasty asides about the people and parties. So,to that end, we might watch together here the progress of the Congress dealing with public lands issues. So I’m starting a new blog category called “Congress”.

This story is from E&E News:

“The Natural Resources Committee, along with its five subcommittees, is ready to get to work this Congress with a continued focus on job creation,” Hastings said in a statement. “Through oversight and legislative proposals, we’ll continue to show how the smart, responsible use and protection of our natural resources and public lands can be one of the greatest ways to grow our economy.”

Leadership atop the five subcommittees has not changed, although Hastings last month announced that Rep. Rob Bishop (R-Utah) will be leading a newly named Subcommittee on Public Lands and Environmental Regulation, which will take jurisdiction over federal lands and the National Environmental Policy Act, among other issues.

Bishop chaired the Subcommittee on National Parks, Forests and Public Lands in the last Congress and was widely expected to take the full committee gavel before Hastings was passed up for chairman of the Rules Committee and stayed put. Bishop told E&E Daily last week that he expects to shine a spotlight on NEPA and the president’s use of the Antiquities Act as chairman of his new subcommittee (E&E Daily, Jan. 16).

Republicans, who are losing one seat on the panel, are welcoming five freshmen: Kevin Cramer of North Dakota, Doug LaMalfa of California, Markwayne Mullin of Oklahoma, Steve Daines of Montana and Chris Stewart of Utah.

Check out who is on what subcommittees here: they may be your Representative.

It sounds like the topic we often discuss here “is there a better way?” will become the topic of this new subcommittee.