Diversity and species conservation

Fremont-Winema wins sucker lawsuit

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In Oregon Wild v. Cummins, the Oregon district court upheld the Fremont-Winema National Forest’s compliance with the requirement of INFISH to “modify grazing practices … that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish.”   The court quoted a prior case for INFISH requirements: “INFISH contemplates that its objectives are `targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.”  While plaintiffs identified streams that did not meet RMOs, the Forest had monitoring data that showed overall improvement in stream conditions. While past grazing practices had contributed to degraded conditions, the court held that now, “there is nothing to indicate that grazing is contributing to any failure to attain INFISH RMOs at a watershed level.”

The court dismissed Endangered Species Act claims regarding the impacts of grazing on two listed sucker species because the Forest was obligated to reinitiate consultation on its grazing permits on a 10-year schedule, which was now ongoing and must be completed prior to further grazing. It also dismissed a challenge to an EA used to approve livestock grazing because plaintiffs failed to exhaust their administrative remedies by appealing the decision (which would have stayed any further grazing until the appeal was resolved).   Finally, there was no significant new information that would require supplementing the EA for grazing allotments.

Mendocino N. F. loses HFRA project lawsuit

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The Eastern District of California District Court has reversed a decision by the Mendocino National Forest to implement the Smokey Project, which would include fuel and vegetative treatments intended to further habitat and fire management goals and contribute to the MNF’s timber production goals (Conservation Congress v. U. S. Forest Service). The project was located in a late successional reserve for northern spotted owls. It was prepared pursuant to the Healthy Forest Restoration Act, which requires only one action alternative to the proposed action if the additional alternative is (1) proposed during scoping or the collaborative process; and (2) meets the purpose and need of the project.

 

The court held that the Forest failed to consider an alternative with an 18” DBH diameter cap sought by plaintiffs.   The court interpreted the phrase “collaborative process” to include “something beyond ‘scoping.’” The court then listed 14 comments in the record that suggested a diameter cap for large trees and/or expressed concern over the cutting of larger trees. It concluded, “Based on the Plaintiff’s active participation throughout the iterations of the Project … the Court concludes that Plaintiff’s suggestions were made during the collaborative process.”

 

The court found that the Forest had failed to “explain why none of these triggered the HFRA requirement to prepare a single additional alternative.” While the Forest had considered a 10” DBH diameter cap as a alternative not considered in detail, the court agreed with plaintiffs that this was a “straw alternative” because no comments had suggested such a low limit. The plaintiffs argued that, “more limited thinning from below prescriptions with quantitative diameter limits … were a viable option that would meet all HFRA objectives, while also being consistent with LSR duties,” and this was apparently not contested.

 

The court also found that the EA failed to take the “hard look” required by NEPA because of the lack of this alternative, and for two other reasons. The explanations of the use of a “limited operating period” as a mitigation measure were conflicting and caused confusion about the effects. The project documentation also failed to explain why admitted failure to monitor other projects did not render this project’s impacts “uncertain.” The court upheld the decision against other NEPA claims, which included a claim that the purpose and need for the project conflicted with the forest plan. The court also found that the project complied with ESA and with NFMA consistency requirements, including compliance with the spotted owl recovery plan (which had been incorporated into the forest plan).

Custer-Gallatin wins salvage logging lawsuit

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On Feb. 6, Judge Molloy in the Montana District Court upheld the Custer National Forest’s  use of the categorical exclusion applicable to projects not exceeding 250 acres for the Whitetail Salvage Project.  In Native Ecosystems Council v. Weldon he found that even though it was the third project in the area affected by the 2012 Ash Creek Fire, the record showed that it was not reasonably foreseeable when the 2013 and 2015 projects were planned, and so the agency had not illegally “segmented” the projects to keep the acreages below the threshold for using the CE.

The court also found that effects on black-backed woodpeckers would be minimal because “the combined area of the Whitetail, Phoenix, and roadside hazard projects affect less than 2% of the highly suitable black-backed woodpecker habitat within the 90-kilometer cumulative effects area,” and “Abundant nesting and foraging habitat for black-backed woodpeckers will remain in the project area and cumulative effects area.”  This level of effects did not require an EA.  Plaintiffs had based much of their case on declarations they submitted by Chad Hanson.  However, the court refused to consider the declarations because documents that “challenge the underlying science and data used by the agency” can’t be submitted outside of the administrative record (meaning they should have been submitted to the agency prior to the project decision).  The judge found compliance with the 2012 Planning Rule requirement for using the best available scientific information for the woodpeckers (which is odd because the Planning Rule is not supposed to apply to projects).

The court also found that the project is consistent with the forest plan.  The project is in a wildlife management area, but the plan had selected mule deer for emphasis in this area, and it was proper under the forest plan for the Forest Service to balance the needs of black-backed woodpeckers and other species in determining to conduct the salvage harvest.

The beginning of state management of national forests

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A group of Western senators, including Sens. Jim Risch and Mike Crapo, both R-Idaho, have introduced a bill to allow states to implement their own conservation plans to protect sage grouse and their habitats, in lieu of federal management.

Congress would be allowing states to override the decisions by the Forest Service and BLM to amend their plans to protect sage grouse, which would amount to letting states take over planning for national forests to the extent that it can be tied to sage grouse in any way.

Resilient forests require change in “default” response to fire

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Here is the key conclusion in an article published by the Ecological Society of America (the article specifically addresses “dry forests”):

One of the most important and fundamental challenges to revising forest fire policy is the fact that agency organizations and decision making processes are not structured in ways to ensure that fire management is thoroughly considered in management decisions. There are insufficient bureaucratic or political incentives for agency leaders to manage for long-term forest resilience; thus, fire suppression continues to be the main management paradigm. Current resource-specific policies and procedures are so focused on individual concerns that they may be missing the fact that there are “endangered landscapes” that are threatened by changing climate and fire…. Without forest resilience, all other ecosystem components and values are not sustainable, at least over the long-term. It is therefore necessary to create incentives and agency structures that facilitate restoration of wildland fire and ecologically based fuel treatment to forest landscapes.

The authors have recognized the problem that fire planning is not well-integrated with planning for other resources on national forest lands.  A key recommendation is to, “Make forest resilience a stand-alone, top land management priority and connect it to managing long-term for endangered species.” It criticizes the continued emphasis on fire suppression, including the strategy of suppressing fires to protect at-risk species.   The article strangely omits any specific references to the 2012 Planning Rule’s ecological sustainability requirements, which I think has incorporated resilience, and its relationship to species diversity, as a policy about as well as we could expect. The question is what will forest plans actually do to avoid the alleged “tunnel vision.” The authors credit the southern Sierra revision forests as “pioneering some of these efforts.”

The authors do offer one recommendation that I think should receive more attention in the planning process: “analyze long-term impacts of continued suppression.” I would expand the recommendation to more clearly recognize that forest plans are the place where overall fire management strategies will be adopted, including identification of resources and areas deemed in need of protection from fire. Desired ecological conditions based in these needs must then be a consideration in fire management decisions, which must by law be consistent with the forest plan. Decisions in a forest plan about or affecting fire management, including those that promote fire suppression, will have effects on ecosystems that must be evaluated and disclosed during the planning process.

Court protects frog from Freemont-Winema National Forest grazing

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In a case with a long history, the Oregon district court enjoined grazing in a pasture on the Fremont-Winema National Forest to protect threatened Oregon spotted frogs and sensitive plant species. The frogs congregate in pools in late summer, and so do cattle.  The court found violations of both NFMA and ESA.

The court held that annual operating plans for grazing were arbitrary and capricious because they were based on a viability analysis that assumed planned levels of grazing instead of the actual trespass and unauthorized use that was occurring and causing damage. Thus the Forest Service couldn’t show that the AOIs met the requirement in the plan to manage for viable populations of these species.

It also remanded the biological opinion that the Fish and Wildlife Service had prepared on the allotment for the newly listed frog. The court found the no-jeopardy conclusion was not supported by the record because there was no scientific basis for a 35% forage utilization rate protecting the frog, it did not provide a rationale for using studies from other areas, and did not explain why it failed to consider non-lethal incidental take in the final BiOp when it had done so in the draft. The magistrate judge suggested the latter was “a strategic application of a measurement convention that results in less apparent OSF loss…”

A NEPA claim was dismissed because Congress has overridden the usual NEPA timing requirements for grazing allotment planning.

National forest plans aid in removing bat from ESA list

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The U. S. Fish and Wildlife Service is proposing to remove the federally “endangered” status from the lesser long-nosed bat found in Arizona, New Mexico and Mexico.  Public lands play an important role in providing habitat, and federal land managers were among the “conservation partners anticipating that their 30-year recovery efforts have paid off.”

In the United States, most lesser long-nosed bat roosts and forage areas are managed by federal agencies (U.S. Forest Service, Bureau of Land Management, National Park Service and the Army’s Fort Huachuca), which have integrated the management of lesser long-nosed bat forage plants – agaves, and saguaro and organ pipe cacti – into their land use and resource management plans.

The potential for this kind of success story is why the new requirement for forest plans to “contribute to the recovery” of listed species needs to be taken seriously by forest planners.

IN SEARCH OF COMMON GROUND

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It seems like an exercise in futility for the “New Century of Forest Planning” group to be discussing and cussing forest planning &/ policy when we haven’t even agreed to the scientific fundamentals that serve as the cornerstone and foundation for any such discussions.

Below, I have developed a tentative outline of the high level fundamentals which any Forest Plan or Policy must incorporate in order to have a reasonable chance of meeting the desired goals. Until we can come up with a version of these “Forestry Fundamentals” that we generally agree to, we are pushing on a rope and wasting each other’s time unless our objective here is simply to snap our suspenders and vent on each other.

In your comments, please note the outline Item that you are responding to. Maybe we can revise my initial effort and come to some common ground. In doing so we would perform a service and make a step forward that would be useful outside of this circle instead of just chasing our tails. Coming to such an agreement would be a step towards developing a priority hierarchy and eliminating the internal conflicts which make current federal forest policy and law ambiguous and self-contradictory. Until we reach common ground, the current obviously unworkable policies will continue to doom our forests to poor health and consequentially increase the risk of catastrophic loss of those forests and the species that depend on them for survival.

– FORESTRY FUNDAMENTALS – 1st Draft 12/15/16

ESTABLISHED SCIENCE WHICH MUST BE INCORPORATED IN PLANNING FOR

THE SUSTAINABILITY OF FOREST DEPENDENT SPECIES

I) The Fundamental Laws of Forest Science which have been repeatedly validated over time, location, and species. They include:
— A) plant physiology dictating the impact of competition on plant health,
— B) fire science dictating the physics of ignition and spread of fire and
— C) insects and pathogens and their propensity to target based on proximity and their probability of success being inversely proportional to the health of the target.

— D) Species suitability for a specific site is based on the interaction between the following items, those listed above and others not mentioned:

— — 1) hydrology, the underlying geology and availability of nutrients in the soil.

— — 2) latitude, longitude, elevation, aspect and adjacent geography.

— — 3) weather including local &/ global pattern changes.

 

II) The Fundamental Laws controlling the success of endangered, threatened and other species dependent on niche forest types (ecosystems):

— A) Nesting habitat availability.

— B) Foraging habitat availability.

— C) Competition management.

— D) Sustainability depends on maintaining a fairly uniform continuum of the necessary niches which, in turn, requires a balanced mix of age classes within each forest type to avoid species extinguishing gaps.

— E) Risk of catastrophic loss must be reduced where possible in order to minimize the chance of creating species extinguishing gaps in the stages of succession.

 

III) The role of Economics:

— A) Growing existing markets and developing new markets in order to provide revenue to more efficiently maintain healthy forests and thence their dependent species.

— B) Wise investment in the resources necessary to accomplish the goals.

— C) Efficient allocation of existing resources.

 

IV) The role of Forest Management:

— A) Convert the desires/goals of the controlling parties into objectives and thence into the actionable plans necessary to achieve the desired objectives.

— B) Properly execute the plans in accordance with the intent of: governing laws/regulations and best management practices considering any economies.

— C) Acquire independent third party audits and make adjustments in management practices where dictated in order to provide continuous improvement in the means used to achieve goals.

— D) Adjust plans as required by changes: in the goals, as required by the forces of nature and as indicated by on the ground results.

— E) Use GIS software to maintain the spatial and associated temporal data necessary for Scheduling software to find and project feasible alternatives and recommend the “best” alternative to meet the goals set by the controlling parties.

What did I miss, what is wrong, what is right, what would improve this list of Forest Fundamentals?

Lawsuit will question fuel breaks

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The Los Padres National Forest has proposed the Santa Barbara Mountain Communities Defense Zone Project.

“The desired condition for chaparral is to establish a diversity of shrub age classes in key areas near communities to improve the effectiveness of fire suppression operations. Adequate defensible space around communities could greatly reduce the risk of structure loss, as well as improve safety for residents. Thus, at the urban interface there will be a management emphasis on direct community protection. This could be accomplished in at least two ways: (1) by removing or heavily modifying shrublands immediately adjacent to populated areas (Wildland-Urban Interface Defense Zones); and (2) by strategically creating blocks of young, less flammable vegetation near the interface areas. Both types of fuels modification could slow or even halt the rate of fire spread into urban areas.”

Two conservation organizations have filed a lawsuit in U.S. District Court “to protect fragile habitat and rare species in the path of a massive, remote fuel break recently approved in the Los Padres National Forest.”  According to this article, “The suit is also an effort to encourage the Los Padres National Forest to focus on reducing fire risk where it matters most, directly in and around communities.”   Interestingly, the Forest Service used a categorical exclusion from NEPA, which suggests that they think there is no scientific controversy about the effects of fire breaks that are beyond the area needed for defensible space.  I’d like to see a court weigh in on this, and how far away “near” and “remote” are, but it might just decide that a CE for “timber stand improvement” can’t be used where there is no timber.

County job description for biologist: “help us combat the radical environmental influence”

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This job interview of a former Forest Service employee by Tuolumne County Supervisors didn’t go well.

Supervisor Evan Royce noted he wanted to be explicit with Boroski, trying to make sure they are on the same page, by saying, “I think we have experienced a lot of extreme environmental influence on public lands policy and in Tuolumne County 78% of our county is publically owned and that has a huge effect on our communities, and we fight very hard on this board to try to protect our communities and represent them in a way that will preserve our quality of life and prosperity…looking into the future, as we are about to adopt a general plan and we’re dealing with new forest plans, it’s very critical to us that if we are going to do business with you that you represent us in that way and you help us combat the radical environmental influence that you see from groups like Center for Biological Diversity. That’s what we want.

A revealing look at their approach to forest plan collaboration.