ESA

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?

Even the 9th Circuit piles onto plaintiffs

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On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber.  The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion.  This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.”  The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”

I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.”  Specific locations of the thinning activities were not identified.  With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.

The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply.  He should have said that it did, but that the requirements applicable to it were met.

Project complies with spotted owl recovery plan requirement in Shasta-Trinity forest plan

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The Eastern California district court upheld the Harris Project on the Shasta-Trinity National Forest on Feb. 26. The project would treat about 2800 acres in northern spotted owl habitat. The Forest Service determined that the project would be “not likely to adversely affect” spotted owls, and the Fish and Wildlife Service concurred. The court found that spotted owls would be able to continue to feed, shelter, or disperse within the 17 acres of treated area in foraging habitat, and therefore the determination and concurrence complied with ESA. It also found that incomplete surveys were the best available science for determining owl presence.

 

The court also found that the agencies followed the recommendations in the spotted owl recovery plan. The recovery plan encouraged long-term improvements in habitat even if there were some short-term adverse effects, and, “Defendants weighed the short-term impacts against the long-term benefits and concluded that the Harris Project would ultimately help protect and increase northern spotted owl habitat. The court deferred to the agencies’ judgments that this project complied with this strategy. (The highlighted terms suggest that there would in fact be adverse effects that should have required a finding of adverse effects and triggered formal consultation to comply with ESA. Offsetting beneficial effects do not negate this ESA consultation requirement.)

 

As result the court also held that the project complied with NFMA because it was consistent with the Shasta-Trinity forest plan that required the Forest to, “maintain and/or enhance habitat for” threatened, endangered, and sensitive “species consistent with individual species recovery plans.”

 

The court also upheld the Forest Service NEPA process. It adequately addressed the effects on spotted owls of promoting ponderosa pine, and properly concluded that other treatments would lead to overall effects that would be beneficial. The court also found that a new report on reducing fire risk (Lydersen) did not contradict information used by the Forest Service, and therefore an SEIS was not needed to address it.

Wish you were on the Dixie?

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The Utah federal district court upheld the Dixie National Forest decision on the Iron Springs Project (argued at a hearing in July 2014) in Alliance for the Wild Rockies v. Bulletts. The Project involves a range of vegetation management activities including intermediate harvest treatments, salvage of timber killed by or dying as a result of beetle infestation, regeneration of aspen, and reforestation of previously harvested areas. Commercial logging would occur on 3,603 acres of spruce/fir.

 

Most of the plaintiff’s claims were based on NEPA. The court found that an EIS was not necessary, focusing on the fact that the project affected only 0.5% of the national forest. It found the analysis of effects on old growth species and other at-risk species (including threatened Utah prairie dogs) to be adequate. There were also no unique characteristics of the area, and no controversy about the effects of the project on several wildlife species.

 

The court was a little creative (or inexperienced) in brushing off potential controversy about using timber harvest to address beetle kill. It concluded that, “Even if the efficacy of timber harvest for the purpose of addressing beetle kill is highly controversial, addressing beetle kill is only one of six stated reasons for the Project.”   This suggests that adding non-controversial purposes to a project can somehow offset any other controversy that exists – a dubious NEPA proposition.

 

Plaintiffs also pointed out that a goshawk amendment to the forest plan had been in place for a decade longer than intended, based only on an EA. However, they did not challenge the forest plan, and the court found that the project was consistent with the forest plan, and that a 2012 scientific review of the amendment validated the best available science for goshawks. The court also upheld viability analysis of management indicator species, which showed that the project area would continue to support sufficient numbers of flickers and three-toed woodpeckers.

Forest planning could promote efficiency by “standard work”

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The Colorado Department of Transportation and U. S. Fish and Wildlife Service have developed a new process for protecting federally listed species. “When fully implemented, the improvements made through SWIFT will also save CDOT hundreds of hours of report writing and tens of thousands of dollars of consulting fees every year.”

“SWIFT is a programmatic statewide review that assesses impacts to these protected federal species and implements pre-determined standardized conservation measures to avoid or minimize impacts to the species and associated habitat – a great example of using the Lean principle of “standard work”. SWIFT provides these standardized impact assessments and mitigation measures for 92 common CDOT construction activities for all threatened or endangered species in the state as well as candidates for future listings. SWIFT is a tool to expedite project delivery by providing project teams with consistent impact determinations for similar work and predictable conservation measures.”  (“Lean” is a management principle that means creating more value for customers using fewer resources.)

The Forest Service has completed similar programmatic consultations on land management activities that may affect listed species. The result is to streamline consultation on projects that fit the pre-determined conditions.   However, individual managers can choose not to follow them and incur higher consultation costs.  Forest planning should consider the costa and benefits of allowing this discretion, and consider incorporating plan components that promote standardization of conservation measures for projects in the plan area.

The Forest Service has also worked with the consulting agencies to adopt uniform conservation and mitigation measures across the range of certain species in its forest plans (such as for Canada lynx). However, in general, the Forest Service resists the idea of adopting “standard work” principles in its forest plans, preferring to characterize this in derogatory terms as “one size fits all.”   It seems to prefer to allow local managers to invent their own wheels, as indicated by proposing changes in range-wide conservation strategies during individual plan revisions, and avoiding the use of mandatory standards that all projects would have to comply with.

Most managers (like those with CDOT) would recognize this as a costly and inefficient process. What does it buy? Comparing the costs and benefits of Forest Service decentralized decision-making would be a good exercise for the GAO on behalf of federal taxpayers.

 

Fish and Wildlife Service points forest planning towards less post-fire logging

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Yesterday, the Center for Biological Diversity shared its displeasure with pending timber sales on the Klamath National Forest. It also cited a previous letter from the FWS making recommendations regarding the same project. Together they point out the importance of forest planning to recovery of listed species.

Under the Endangered Species Act, each proposed project must only be reviewed against a criterion that prohibits actions that are likely to jeopardize the continued existence of the species. However, ESA also requires all federal agencies to carry out programs for the conservation of listed species. “Conservation” under ESA means to use all methods and procedures that are necessary to recovery of listed species. Under the 2012 Planning Rule, forest plans must contribute to recovery of listed species.

In its earlier letter, the FWS recommends conservation measures that would contribute to spotted owl recovery.   While directed towards this particular project, such measures need to be given serious consideration as means to meet the recovery obligations of forest plans. Some key messages in the letter:

“Given the spotted owl’s current population trend, the 2011 Revised Recovery Plan for the Northern Spotted Owl (link omitted) calls for retaining existing spotted owls on the landscape to the greatest possible extent throughout the species’ range.”

“Our overarching recommendation is for land managers to use the full suite of management tools (e.g., mechanical treatments, prescribed burning, let-bum policies, etc.) to ‘move’ forest landscapes to fire regimes that are more characteristic and natural consistent with the ecological setting.”

“Low, moderate and, in some cases, high-severity fires maintain habitat conditions conducive for spotted owls, and we recommend minimizing salvage or harvest activities in areas where spotted owls remain post-fire.”

“In general, most scientists agree that salvage logging does not contribute positively to the ecological recovery of naturally disturbed forests (citation omitted). In our experience many post-fire salvage projects tend to be more opportunistic than part of a larger-scale, proactive strategic planning effort to reduce fire spread and severity. Such a larger scale effort could include landscape level considerations for both fuel reduction and strategic fire breaks while incorporating considerations for spotted owls and other land management priorities. Recovery Action 12 in the Revised Recovery Plan recommends retaining post-disturbance legacy structures (such as large, dead tees, whether standing or down) in areas that are managed for spotted owl habitat because these features greatly improve the quality of the habitat as it recovers over time. It is important for action agencies to seek ways to implement important fuel reduction work without overutilizing salvage togging that can adversely affect the restoration of natural conditions.”

This is the kind of best available scientific information that the Forest Service must take into account when it revises forest plans for national forests with spotted owl habitat.  It demonstrates that there is a need to change existing plans so that future projects are based on a broad-scale conservation strategy that reflects current scientific understanding of post-fire logging in spotted owl habitat.  These recommendations could readily be translated into plan components that are needed in the forest plan to contribute to recovery of spotted owls.

Tales of two trees

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Whitebark pine is a candidate for listing under the Endangered Species Act (meaning that listing is warranted).  The U. S. Fish and Wildlife (and tree) Service has recently downgraded its priority for listing from 2nd priority to 8th.

The primary threat to the species is from disease in the form of the nonnative white pine blister rust and its interaction with other threats…  However, the overall magnitude of threat to whitebark pine is somewhat diminished given the current absence of epidemic levels of mountain pine beetle, and because of this, individuals with genetic resistance to white pine blister rust likely have a higher probability of survival… Overall, the threats to the species are ongoing, and therefore imminent, and are now moderate in magnitude.

White ash is not a candidate for listing under the Endangered Species Act.  However, it is threatened with extinction as result of the introduced emerald ash borer.  The Forest Service is applying euthanasia treatments to the Allegheny National Forest.

The Emerald Ash Borer Remediation project would regenerate stands that have been or will be affected by non-native invasive insects. The purpose of this project is to manage the proposed treatment areas on the Bradford Ranger District to achieve a diversity of desired forest trees, a healthy and resilient ecosystem, and diminish the risks and consequences of forest health threats.

Desired tree seedling species do not develop in sufficient quantities on the Allegheny National Forest without intensive forest management. Interfering understory vegetation generally outcompetes tree seedlings. It is a result of decades of selective deer browsing (Horsley, Stout, deCalesta 2003). Unless management actions create suitable conditions for the establishment and development of desired tree seedlings, important ecological structure, function and processes will not be maintained in stands where white ash, American beech and Eastern hemlock individually or collectively make up the majority of the community.

Managing and regenerating declining stands now will promote natural regeneration of desired trees. It will sustain healthy, well-stocked forested stands over the long-term. This project is designed to address project area forest health concerns by regenerating stands before natural regeneration opportunities are lost.

Projected mortality is 99% of the affected trees without treatment (presumably it’s 100% with the treatment).  They don’t say what “desired trees” they are regenerating, and I can’t make much sense out of “natural regeneration” from the trees that would be “lost” (since they will be logged).  It looks to me like they are making sure there are no survivors, and if this is practiced across the range of the white ash, it would obviously become a candidate for listing.  Is there a better way?  Especially in the two old growth management areas where some of this project would occur, where making money off of timber harvest is not part of the purpose?  (Maybe killing deer would help – how about reintroducing wolves?)

Here’s the story that got my attention.  It mentions the need for a forest plan amendment, but the Forest Service documents do not mention this (and it would have to be part of the scoping package).

Settlement: opening roads to motorized use requires NEPA (take 2)

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It’s the Pike-San Isabel this time.  The issue appears to be “unauthorized and unanalyzed” routes.  It’s not clear whether those are two different things, but I think the point is that when a Motor Vehicle Use Map allows motorized use on user-created (“unauthorized?”) roads, the map becomes an authorization that triggers NEPA, ESA, NFMA consistency and travel plan “minimization” requirements.  The MVUM is not just displaying an open road system that was authorized in a previous travel planning and NEPA process (as was envisioned by the Travel Management Rule).

Thanks to WildEarth Guardians, we can look at the settlement agreement.  In it the Forest Service agrees to conduct travel planning using the proper procedures (I’ll bet that was a hard thing for them to accept …), agrees to some specific aspects of the process, and will undertake some interim protection measures in specified areas.  That’s a pretty standard formula, I think – do/re-do the process, and meanwhile don’t take some actions (in this case that means interim closing and “unopening” some roads).

What I need someone to explain to me is this.  Some motorized user groups intervened as defendants, but their signature is not on the settlement agreement.  I thought intervention allowed the parties to contest a settlement in some way.  Can we assume that they didn’t in this case?

California spotted owl listing process

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As Larry mentioned a month ago, the U. S. Fish and Wildlife Service has made a positive 90-day finding on a petition to list the California spotted owl under ESA.  This means that listing may be warranted, and the agency is soliciting additional comments by November 17.

The action was taken in response to a petition last December by the Wild Nature Institute and the John Muir Project of Earth Island Institute.  A second petition was submitted by Sierra Forest Legacy and Defenders of Wildlife in August.  The SFL website lists the new scientific information that supports listing, which among other things downplays the idea that fires are bad for owls.   The FWS response to the earlier petition states:  “Recent research has focused on use of burned forests by CSO and has concluded that unlogged burned areas may be important to reproductive success and continued occupancy.” 

The petition response also implicates national forest plans as another detrimental change that has occurred that must be considered in determining the adequacy of existing regulatory mechanisms for protecting the species:

  • 2004a USDA. This amendment to the 2001 US Forest Service Forest Plans
    (USDA 2001) allowed increased or new timber harvest, thinning. fuels
    reduction. post fire logging. etc. in areas previously managed for CSO.
  • USDA 2013b. Management in the Lake Tahoe Basin Management Unit
    allows clear cut timber harvest and removal of larger diameter trees (>30″
    dbh) in CSO habitat and previously occupied nest areas.

It is currently Forest Service policy to not contribute to listing under ESA.

Politicizing science – the view from the front lines

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A survey from the Union of Concerned Scientists included employees of CDC, FDA, FWS and NOAA.

A significant number of scientists (46 to 73 percent of respondents across agencies) reported that political interests at their agencies were given too much weight in their agencies.  Many scientists told us that scientific decisions were being swayed by politics or that political influence inhibited their ability to carry out agency missions.

The Fish and Wildlife Service was at the 73% end of the scale where one employee said,

“It is my perception that upper-level managers are influenced by fear of Congress dismantling the Endangered Species Act and/or otherwise interfering with the mission of the Service.”

One would expect that this would eventually lead to litigation about not following the law (followed by Congress complaining about the plaintiffs and the courts).

Interesting that another question in the survey indicates that Congress is as guilty as advocacy groups are for slowing the ESA process down.  While the Department of the Interior is credited with investing in scientific integrity, the Agriculture Department is singled out for not doing so.