ESA

Whitebark pine still waiting on ESA

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Whitebark pine are being killed by a disease, white pine blister rust, as well an insect, the mountain pine beetle, according to the Fish and Wildlife Service.

Meanwhile, other species of trees have crowded out whitebark pine due to fire suppression efforts over the past century, the agency said.

The Wildwest Institute and the Alliance for the Wild Rockies couldn’t convince the 9th Circuit Court of Appeals that whitebark pine should be a priority for protection under the Endangered Species Act.  The Fish and Wildlife Service found whitebark pine to be warranted for listing but precluded by higher priorities.  The priority system the agency uses for considering additional species made whitebark pine a priority for listing, but the court held that the Service doesn’t have to follow its own priorities.  Whitebark pine remains a candidate species.

A conservation plan puts science ahead of politics

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This story about the Pima County Arizona conservation planning effort isn’t directly about national forests, though there should have been (and probably was) coordination with the Coronado National Forest.  And my point here isn’t about the success of a conservation plan driven by the need to protect at-risk species (arguably an ESA success story).  It’s about the role of scientists in the process (Sharon).

“County leaders stated from the outset that their primary goal was to conserve biological diversity through a scientifically defendable process, not to come up with a plan that everybody could agree on,” wrote the late urban planning specialist Judith Layzer in her 2008 book Natural Experiments, which analyzed more than a half-dozen regional land-conservation efforts.

The scientists and county staff discussed the plan in public sessions, but county officials made it clear that their work would not be derailed by complaints from developers and other critics. The scientists established standards for identifying biologically valuable lands and used computer models, observation records and the judgment of local naturalists and recognized experts to come up with a biological preserve map.

In contrast, in other multi-species plans, scientists, politicians, agency staffers, developers and moderate conservationists collectively determined which lands to save, thus bringing political and economic considerations into the science.

Looking back this spring, Huckelberry, a former county transportation chief, says he was simply applying the best practices from his previous job, highway planning, to land conservation. Typically, both a technical committee and a citizens’ committee review big road projects, he says: “The whole purpose of a technical advisory committee is not to play with the numbers, not to slant the analysis. We felt the political side could potentially be used to manipulate the scientific side, and felt that would bias the entire process.”

After the science team created a map of the proposed preserve system, a separate steering committee of 84 people, including developers, environmentalists and neighborhood leaders, haggled over its details. By then, though, the plan’s broad vision was already solidly in place.

Bringing this back to the Forest Service, this is similar to how a team of biologists developed the Lynx Conservation Assessment and Strategy, which was then followed by forest plan amendments that “haggled over the details.”  The Forest Service doesn’t like some of things it can’t do, but there haven’t been challenges to the science.  The grizzly bear conservation strategies seem to be more like the alternative process, where what the land managers want is infused into the discussions of the science.  (The Yellowstone strategy was already voided by a court once because of scientific issues.)

9th Circuit upholds EA for Shasta-Trinity logging project

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The mantra I always use to hear was don’t use an EA if you might get sued.  Maybe things are different now?  Or maybe this was just one of those EAs that looked a lot like an EIS.

  • The Project’s proposed treatment methods will retain all existing snags greater than 15 inches in diameter, “unless deemed a safety hazard by the purchaser, or in the case of a need to meet coarse woody debris (CWD) requirements.” Because the Project only removes snags in two limited circumstances, it was reasonable for USFS to conclude that treatment methods will not reduce snag numbers below Forest Plan standards.
  • The Project’s Environmental Analysis considered a total of fourteen alternatives, five of which were discussed in detail.  The USFS reasonably concluded that not treating 17% of the Project area would thwart the major purposes of the Project.
  • USFS properly analyzed the cumulative impacts of the Project.  The Council on Environmental Quality (“CEQ”) Handbook does not require USFS to use the owl’s “natal dispersal” distance in its analysis.
  • While the uncertain effect of fires in spotted owl foraging areas may cast doubt on some aspects of the Project, the Project’s anticipated effects as a whole are not highly uncertain and do not trigger the need for an EIS.  Also, logging in designated critical habitat will be limited to areas that support lower-quality owl habitat—and no forest treatment will occur in nesting and roosting habitat.  “We think USFS has provided a ‘convincing statement of reasons’ to explain why [the Project’s] impacts are insignificant.”

Conservation Congress v. U. S. Forest Service.  March 31, 2017.

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).

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.

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.

Forest planning for federal land ownership

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The Superior National Forest has received a notice of intent to sue over a land exchange that would allow development of a mine on the former national forest lands. The notice involves federally listed wolves and lynx. My question was whether the exchange is consistent with the forest plan as required by NFMA.

The Superior National Forest Plan contains very useful direction for land exchanges. It includes priorities for acquiring land (one of which is “Land needed for habitat for federally listed endangered, threatened, proposed, or candidate species or for Regional Forester Sensitive Species,” but that was not invoked by the ROD for this exchange). The plan also includes criteria for conveying land out of federal ownership, and it determines whether lands in each forest plan management area are suitable for conveyance.

The Record of Decision for this exchange first finds that a mine in this location would be inconsistent with the forest plan direction for the area. It then addresses the criteria for acquisition and conveyance (which are guidelines in the forest plan) and finds that the exchange would be consistent with the forest plan. The lands in the federal parcel to be conveyed are in the “General Forest and General Forest-Longer Rotation Management Areas” where conveyance is allowed. They also contain a lake, and there is a forest plan guideline to retain ownership of lakes. However the guideline is defined to allow deviation as long as the purpose of the guideline is met, and the exchange would produce a net gain in national forest water frontage.  The ROD also considers the mining project and land exchange in relation to Forest Plan direction related to larger areas on the landscape, including lynx analysis units.  (The ROD mistakenly cites the 2012 Planning Rule consistency provisions, which do not apply to plans developed under prior planning regulations, but the result should be the same.)

The plan components in the Superior Plan seem to have provided for a relatively smooth project planning process. Other forest plans I’ve seen provide much less guidance for land adjustments. It is important for a forest plan to recognize areas that provide important values by including plan components to retain and acquire such areas (which may then be supported by more detailed land adjustment planning). This may be especially important in planning for wildlife habitat connectivity in mixed ownerships.

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.