Diversity and species conservation

Western Watersheds v. USFS (D. Idaho)

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This case involves the decision by the Targhee National Forest to issue new Annual Operating Instructions to the Agricultural Research Service in 2017 to allow the U. S. Sheep Experiment station to continue grazing sheep on two allotments. This case was summarized in today’s Litigation Weekly, but since it found two violations of the forest plan these are worth some further discussion. Note that the case was decided on a motion for a preliminary injunction, and the perceived risk to bighorn sheep viability was key factor in granting the PI to prevent irreparable harm. (There is also a NEPA claim that the court did not decide as part of the PI opinion.)

In order to “provide an opportunity to minimize conflicts between domestic and bighorn sheep,” the Targhee Forest Plan required these allotments to be “phased out on an opportunity basis.”   “Opportunity” was defined to include “resource protection.” The court found that new telemetry data showing proximity of the bighorn sheep to the domestic sheep and other new information “reasonably could have been identified as an opportunity” to close the allotments based on the objective of resource protection instead of issuing a new AOI.

The forest plan required the Forest to maintain “at least viable populations of all native and desired nonnative wildlife . . . in habitats distributed throughout their geographic range on National Forest System lands.” The court summarized the Forest Service argument as follows: “the Forest Service asks the court to the measure the Forest Plan’s maintenance requirement not herd-by-herd, but by considering the sum of all of the individual bighorn populations Forest-wide.” The court used a dictionary definition of “maintain” to find that allowing this small herd of bighorn sheep to be extirpated “potentially will diminish the overall population of bighorn sheep throughout the Forest.” “Thus, in no way do the common definitions and understandings support neglect or deterioration of a population of animals (taken as a whole, or in part) that the Forest Service is mandated to maintain.” The court also cited agency requirements for ensuring that sensitive species do not become threatened or endangered (bighorns are classified as sensitive species on the Targhee).

WA murrelet strategy should “meet only minimum federal standards for protections”

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At least that’s what the Washington state politicians are urging their Department of Natural Resources to adopt for its lands.

The DNR is currently considering five different proposals to protect the bird species. A final decision is expected within the next few weeks. Walsh has come out in favor of “alternative B” which he says would meet minimum federal standards for species preservation while ensuring the least amount of negative impact on local economies.

A press release noted that Walsh, and his peers who signed off on the letter to the DNR, believe that reduced timber sales in coastal communities would “create significant economic hardship on counties and communities that can least afford it.”

In other words, let’s manage this species so it stays on the edge of extinction.  This is why we have endangered species (and a federal Endangered Species Act).

Plan for logging in Daniel Boone National Forest threatens rare flowers

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This is about a formal objection to a logging project.  I think it illustrates one of the major issues we see in a lot of conflicts about logging (and an eastern example to boot):  what role should timber sale economics play in project selection and decision-making?

From the objectors:

Instead of focusing restoration efforts where they’re most needed, the Forest Service is going where the timber is,” Scheff said.  Scheff said there is a genuine need for appropriate measures to improve the health of the area, which is home to unusual or rare features including sandstone glades, Appalachian seeps and spots of native grassland. But the Forest Service could use methods other than commercial logging at many sites to achieve the goals of the project, Scheff said.

From the Forest Service:

The Forest Service said logging as part of the Greenwood project would help the local economy.  Reed said commercial logging is a tool to help improve the national forest, bringing in money for work the Forest Service would otherwise have to pay to get done.  “It’s an efficiency and it’s common sense,” Reed said.

I at least hope the NEPA process clearly laid out the differences in effects between these alternatives, and the reasons for the choices made.

Sage grouse planning do-over

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This article discusses the last Trump/Zinke twist in the effort to prevent sage listing of the greater sage grouse under ESA.  While sage grouse habitat on federal lands is mostly under BLM jurisdiction, the Forest Service is also a big player, and 20 forest plans were amended in 2015 to include conservation measures that were relied on by the Fish and Wildlife Service in its decision to not list the sage grouse.  Many of the laws and principles in play here also apply to other at-risk species on national forests.  Here are is one principle from Republican Wyoming Governor Matt Mead that I think is especially relevant right now:

“We can’t have wholesale changes in wildlife management every four or eight years. I don’t think that is the best way to sustain populations or provide the necessary predictability to industry and business in our states.”

And then there’s this:

The oil and gas industry group Western Energy Alliance has called for action following the federal review of the sage grouse plans. The group was not one of the key players in developing the plan in Wyoming, but has been vocal on the need for changes that support energy development.

(Where have we heard complaints about something like this before?)

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

What is Beyond the “Fog of War”?

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There are scary and uncertain times ahead for our forests. There is just too much “Fog of War” going on for the public to sort out and fact-check for themselves. Even the ‘fact-checkers’ should be suspect, until proven reliable and bias-free. The rise of ‘fake news’ has blurred multiple lines, and many people, even in mass media, fall for the hoaxes, satire or misinformation. (Example: An article appeared on the Grist website, showing concern about a recall of “Dog Condoms”, presenting the link to www.dogcondoms.com )

New lawsuit on Arizona copper mine and jaguars

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The Coronado National Forest has been sued by the Center for Biological Diversity for approving the Rosemont copper mine.  The U. S. Fish and Wildlife Service is also a defendant because the issues involve ESA consultation on the mine.

The Rosemont Mine would “significantly impact a number of endangered species and their remaining habitat, including one of the three known wild jaguars in the United States,” said the center.

The mine’s footprint lies “squarely in jaguar critical habitat” important for the survival and recovery of jaguars in the United States, the Center said, cutting through the home territory of “El Jefe,” one of three jaguars spotted in Arizona’s mountain, the center said.

In the lawsuit, the center said that the mine would affect 5,431 acres of land in the Coronado National Forest, including hundreds of acres used as a “dumping site” for more than a billion tons of waste rock and tailings facilities. Approved by the Forest Service, the Rosemont Mine would also include hundreds of acres of fencing that would present a “permanent barrier to wildlife movement.”

“The Rosemont Mine would turn thousands of acres of the Coronado National Forest into a wasteland,” wrote Marc Fink, an attorney for the group. “Even though the agencies found it would permanently damage endangered species and precious groundwater resources, they’re letting the mine proceed,” he said.

The decision to permit the mine required a forest plan amendment.  The Forest Service provided this rationale:

“I have decided to amend the 1986 Coronado forest plan by creating a new MA that provides for
mining of privately held mineral resources while allowing other forest uses to the degree that they are safe, practical, and appropriate for an active mining or postmine environment. Standards and
guidelines have been developed specifically for this new MA (MA 16). See the FEIS, pp. 117–120,
for details. In so doing, this project meets the requirements of 36 CFR 219.

I have determined that this programmatic amendment of the 1986 forest plan is not significant
because it would not significantly alter the multiple-use goals and objectives for long-term land and resource management for the forest as a whole.”

The requirements of “36 CFR 219” it allegedly satisfied were those from the 1982 planning regulations.  The amendment was allowed to proceed under the old regulations because it was initiated prior to the 2012 Planning Rule.   However, both sets of regulations require that forest plans provide for recovery of listed species.  There could be an NFMA violation as well.

Forest planning for hunting

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“A number of environmental groups, including the Endangered Species Coalition, want to keep hunters who use packs of dogs out of public lands in Wisconsin, including the state’s national forests.  The groups say the hunters and their dogs have made the public lands inhospitable, and they want the federal government to launch an investigation into the practice.  Robert Williams is a Madison resident who frequently camps on public lands in northern Wisconsin. He says the packs of hunting dogs wreak havoc on the native wildlife.”

This brings to mind a similar situation in Louisiana. In 2012 the Forest Service amended the Kisatchie National Forest plan to prohibit the “age-old tradition” in Louisiana of hunting deer with dogs because of user conflicts.  In Louisiana Sportsmen Alliance v. Vilsack, a federal district court upheld the forest plan amendment. It stated: “We are conscious of the fact that KNF is a National Forest, owned by the United States and to be utilized in the best interests of all. The law empowers the agency to make precisely the kinds of decisions made here.”  (The Fifth Circuit then held that plaintiffs had not established standing to sue and dismissed the case.)  If the agency has the authority to regulate recreation that impacts species listed under ESA, then its failure to do so in Wisconsin might violate the law.  (However, under the 2012 Planning Rule, forest plans do not directly regulate users by themselves, and a separate closure order would be required.)

Fuel treatments to save an endangered species

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The case of the Mount Graham red squirrel seems to be another example of where everyone agrees that fuel treatments make sense.  According to the U. S. Fish and Wildlife Service, loss of habitat to fire is the primary threat to this species.  The draft recovery plan was revised in 2011 largely due to unanticipated increases in the fire threat.  It describes management occurring on the Coronado National Forest:

The Pinaleño Ecosystem Management (PEM) demonstration project, implemented from 2000
through 2008, is a large project in the mixed conifer zone of the Pinaleños. The PEM project
involved thinning, piling, burning, and sometimes broadcast burning in an area occupied by the
Mount Graham red squirrel, northern goshawk, Mexican spotted owl, and numerous USFS
Sensitive Species.

Currently (2011), the Coronado National Forest has also proposed a larger fuel reduction and forest restoration project called the Pinaleño Ecosystem Restoration Project (PERP). This project is designed to help reduce the threat of catastrophic wildfire in much of the remaining mixed
conifer zone, and will begin to set the forest on a trajectory that will allow a low-intensity fire
cycle. Large-diameter trees, snags, and logs of all canopy species will be retained, while select
smaller-diameter under- and mid-story trees will be removed to achieve desired forest conditions
(considering species composition, life form structure, and landscape matrix of age classes). The
mixed conifer forest currently has the largest block of remaining squirrel habitat, and monitoring
of impacts to the red squirrel and its habitat is incorporated into the project’s design. This
project is currently undergoing formal consultation, and will take a decade or more to complete.
The success of this project in reducing the threat of stand-replacing wildfire, while having
minimal short-term impact on the Mount Graham red squirrel, will be key to setting the stage for
recovery of the species.

The project was ongoing in 2015, and there was apparently no litigation.  (The Center for Biological Diversity has been active in challenging the main human threat – astronomers.)  The key seems to be the mitigation measures that led to the FWS concluding there would be “minimal short-term impact” (and the squirrel’s limited range of around 12,000 acres probably helps).  How then to interpret this statement in a story about a fire there this summer?

“Until they do something with the Endangered Species Act, we’re going to continue to have these (fires) because they don’t let them thin the mountain up manually because of the squirrel,” Weech said.

Wildlife and last year’s eastern wildfires

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“Endangered snail survives devastating fall wildfires” and other stories from the Smoky Mountains.

The snail was placed on the federal endangered species list in 1978. Before the fires, the only place in the world it was known to exist was a 2-mile stretch the southern side of the Nantahala River Gorge in Swain County.

After the fires, biologists found snails in an area about 5 miles long and extending to near the top of the ridge, a much broader area than ever thought, he said.

One interesting point is that the drought that led to the fire may have also caused these less mobile species to seek out wetter areas that gave them more protection from the fire.