ESA

What Does CASPO Listing Mean and How Does the Process Work?

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Larry frequently cautions us about the different kinds of owl habitat, so I thought I’d post this handy table from the 2019 Forest Service CASPO conservation strategy.

Anonymous posted this link under “Topics of Interest”. It says it’s a proposed rule..

We, the U.S. Fish and Wildlife Service (Service), propose to list two distinct population segments (DPSs) of the California spotted owl (Strix occidentalis occidentalis), a bird species from California and Nevada, under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the California spotted owl. After a review of the best available scientific and commercial information, we find that listing the Coastal-Southern California DPS as endangered is warranted, and that listing the Sierra Nevada DPS as threatened is warranted. Accordingly, we propose to list the Coastal-Southern California DPS as an endangered species under the Act and the Sierra Nevada DPS as a threatened species with a rule issued under section 4(d) of the Act (‘‘4(d) rule’’). If we finalize this rule as proposed, it will add these two DPSs to the List of Endangered and Threatened Wildlife and extend the Act’s protections to them.

She/he/they added .. “including a bunk 4(d) rule.”

Steve posted on the E&E news story here.

Claudia Elliott asked how this determination of “threatened” might change the management of giant sequoias and asked for our help and insights. Also, she asked what is a 4(d) rule?

It would be great if someone could explain the steps in the process from here on in, and especially how that ultimately gets translated into management direction, including where the public might be involved. Thanks!
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We can also discuss 2ndLaws comment under Steve’s post. Hopefully it won’t be confusing to focus all the current CASPO discussion on this thread. Here’s 2nds comment:

This listing announcement is foreshadowing a aggressive program of “logging it to save it” even though it is well-established (thanks to the state-and-transition models used by carbon scientists) that the adverse effects of fuel reduction logging, plus unavoidable wildfire, are worse for spotted owls than the effects of wildfire alone, due in large part to the low probability that fuel logging will interact with wildfire during the brief period that treatments are effective.

Raphael et al (2013) used a state-and-transition model to explore the effects of landscape fuel reduction logging on spotted owls and found:

Active fuel reduction activities in moderate habitat contributed to substantial short-term (simulation years 0 to 30) population declines under the larger area, higher intensity scenarios. … The combination of BDOW interactions and high-intensity, larger-area treatments contributed to the most substantial NSO population bottlenecks. … It appears that management regimes that take out owl habitat through treatments (either current or potential future) do not reduce the amount of habitat that is lost to wildfire enough to make up for the habitats lost through treatments.

Principle Investigator: Dr. Martin G. Raphael. Project Title: Assessing the Compatibility of Fuel Treatments, Wildfire Risk, and Conservation of Northern Spotted Owl Habitats and Populations in the Eastern Cascades: A Multi-scale Analysis. JFSP 09-1-08-31 Final Report, Page 19. http://www.firescience.gov/projects/09-1-08-31/project/09-1-08-31_final_report.pdf.

Sierra At Tahoe Ski Area Re-opens

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After the Caldor Fire seriously impacted the ski area, Sierra At Tahoe is open again. As you can see, it was a high intensity portion of the fire, with the previous forest being highly flammable and loaded with decades of heavy dead fuels. After several droughts, the area did not have any salvage operations. The area is also known to have nesting pairs of goshawks around.

As you can see, snow sports people will be enjoying a new experience of skiing and boarding, without so many trees ‘hindering their personal snow freedoms’. *smirk*

Sensitive species and NFMA?

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Los Padres ForestWatch. The California spotted owl is listed as a Sensitive Species by the U.S. Forest Service and by the California Department of Fish and Game as a Species of Special Concern.

This question came up in the fuel treatment post yesterday, but it is worthy of its own post (wonky as it is).  I think there are some misconceptions out there about sensitive species.  This is without refreshing my memory (which I should do more often any more), but I was heavily involved in lots of this.

NFMA does not require identification or protection of sensitive species.  NFMA requires plant and animal diversity.  Habitat for viability is a requirement for diversity in the planning regulations (old and new).  Sensitive species have never been found in the planning regulations.  To the extent there was an implied regulatory requirement in the 1982 regulations, it was for viable populations of management indicator species (MIS).

“Sensitive species” was apparently created by the Forest Service (I’m guessing the Wildlife staff) as a means of both meeting the NFMA viability requirement and preventing listing under ESA, and requirements for sensitive species (including preparation of a Biological Evaluation) were to be applied to both plans and projects. The details may be found in FSM 2670 (which also addresses ESA requirements) and FSM 2620.  The current version of these is dated 2011, prior to the 2012 Planning Rule.  (The agency has frozen up in its efforts to update this manual direction.)

This led to a lot of confusion, even by judges, regarding what was required at the project level.  It sometimes appeared that parties/judges were saying that the NFMA viability requirement applied to each project (like ESA).  At one point (2004ish?), the Forest Service, issued an interpretive rule to clarify that the viability requirement in the 1982 planning regulation applied only to forest plan decisions (unless the plan imposed its own viability requirement on projects, which some did).

It also made this problem a focus of its efforts to produce a new planning rule.  Language now makes it clear that nothing in the 2012 Planning Rule applies to projects, and specifically the new requirements for species of conservation concern (SCC) apply only to forest plans (and projects must be consistent with what the plan says).

Meanwhile, forest plans that are being revised are following the new requirements for species of conservation concern. The Forest Service issued an internal letter to regional foresters on June 6, 2016 explaining that it would phase out the sensitive species designation. It recognized that, “As noted in the preamble to the 2012 planning rule, “[Regional Forester Sensitive Species] are…similar to species of conservation concern.”   It also stated that, “Applying both systems on the same administrative unit would be redundant.” Consequently, “Once a revised plan is in effect, the Regional Forester’s Sensitive Species list no longer applies to that unit.”

The letter acknowledges that a biological evaluation must still be prepared for a revised forest plan.  The letter doesn’t specifically instruct forests that have not revised their plans to keep preparing BEs for projects, but the Manual direction is still in place, so it is still official policy.

One observation I’ve made in reviewing forest plans revised under the 2012 Planning Rule is that sensitive species are often NOT considered “similar to species of conservation concern.”  Many sensitive species (with “viability concerns”) have not been designated SCC (“substantial concern about the species capability to persist over the long term in the plan area”) during forest planning.  Why is that?

The other thing I’ve seen when forest plans are being revised is that the Forest Service is not doing a very good job of explaining to the public that they are no longer going to have project analysis requirements for at-risk (but not listed) species separate from NEPA, and that some species they used to address at the project-level may not be addressed at all after the forest plan is revised.

Public lands endangered species news

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50TH! anniversary in 2023

 

Links provide additional information.

COURT CASES

On April 15, the Tenth Circuit Court of Appeals affirmed the district court and upheld the designation of critical habitat for the New Mexico meadow jumping mouse, which is found in dense riparian vegetation in the southwest.  Plaintiffs were federal grazing permittees.  The court was largely deferential to the Service’s consideration of economic impacts and the benefits of excluding some areas that it had decided to include.  (The opinion in Northern New Mexico Stockman’s Association v. U. S. Fish and Wildlife Service is here.)

On April 19, the Center for Biological Diversity moved to intervene as a defendant in a case filed in the District of Columbia district court on December 13, 2021 by the New Mexico Cattlegrowers’ Association against the U. S. Fish and Wildlife Service for denying their petition to delist the endangered southwestern willow flycatcher.  The species is found in riparian forests in the southwest, and has been the subject of litigation against cattle grazing on public lands.  Plaintiffs allege that the bird is not a valid subspecies that is eligible for listing.

On April 21, the Center for Biological Diversity filed a lawsuit against the U. S. Fish and Wildlife Service in the district court of Arizona for delaying a determination of whether to list the Suckley’s cuckoo bumblebee as threatened or endangered.  These parasitic pollinators were once common in prairies, meadows and grasslands across the western United States and Canada.  Suckley’s cuckoo bumblebees are threatened by declines in their host species, habitat degradation, overgrazing, pesticide use and climate change.  The survival of Suckley’s cuckoo bumblebees is dependent on the welfare of their primary host, western bumblebees, who have declined by 93%. The Center is also working to obtain Endangered Species Act protection for western bumblebees.

In response to three lawsuits brought by the Center for Biological Diversity, the U.S. Fish and Wildlife Service agreed to dates for decisions on whether 18 plants and animals from across the country warrant protection as endangered or threatened species under the Endangered Species Act. The Service will also consider identifying and protecting critical habitat for another nine species.  The species include the wide-ranging monarch butterfly and tri-colored bat, and two salamanders found on the Sequoia National Forest.

Another species is the eastern gopher tortoise, and the U.S. Fish and Wildlife Service will determine by Sept. 30 whether gopher tortoises in Florida, Georgia, South Carolina and eastern Alabama should be listed.  Gopher tortoises are already listed as threatened in Louisiana, Mississippi and western Alabama.  “The tortoises need large, unfragmented, long-leaf pine forests to survive,” the center said Tuesday in an announcement about the settlement. This lawsuit, which was filed last year in federal court in Washington, D.C., said the Fish and Wildlife Service found in 2011 that gopher tortoises merited listing because of threats “including habitat fragmentation and loss from agricultural and silvicultural practices inhospitable to the tortoise, urbanization, and the spread of invasive species.”  However, they were not given a high priority for listing by the agency.  (This article discusses the gopher tortoise.)

WildEarth Guardians and Wilderness Workshop have settled their lawsuit against the U. S. Fish and Wildlife Service for designating insufficient critical habitat for Canada lynx (leaving out parts of Montana) in 2014.  The reconsideration of critical habitat will occur by the end of 2024.  This comes after the Biden administration reversed a U.S. Fish and Wildlife Service decision to propose delisting the lynx in 2017 during the Trump administration. (Following that, another group of conservation organizations reached an agreement with the agency in November 2021 to write a draft recovery plan for lynx by the end of 2023.)

LISTING ACTIONS

On March 2, the U. S. Fish and Wildlife Service proposed designating two freshwater mussel species as threatened, and also proposed critical habitat.  The western fanshell is found on the Mark Twain and Ouachita national forests, and the Ouachita fanshell on the Ouachita.

Following litigation, on March 23, the U. S. Fish and Wildlife Service reversed its position and proposed to up-list the currently threatened northern long-eared bat to endangered status, primarily as a result of continued losses to the white nose syndrome disease.  The important change that will result is the removal of exceptions to incidental take requirements that are available for threatened species but not for those classified as endangered.  This will mean more involved consultation procedures for any actions that remove trees in the 38 eastern states in which the species is found.

On April 13, The Center for Biological Diversity and two other conservation organizations notified the U. S. Fish and Wildlife Service of their intent to sue for delaying a determination of whether the thick-leaf bladderpod should be listed under the Endangered Species Act.  This follows the failure of the BLM in southeastern Montana to act on its staff recommendations to close an area to mining to protect this species they classify as “sensitive” from potential gypsum mining.  Off-road vehicle use is also a factor.  (This news release has a link to the NOI).

On May 12, the Center for Biological Diversity notified the U. S. Fish and Wildlife Service of its intent to sue for delaying making listing decisions for 11 species.  One of these is the whitebark pine, found at high elevations in seven western states.  Two plants are threatened by cattle grazing in the southwest, and the slickspot peppergrass by grazing in southwest Idaho.  The sickle darter (a fish) is allegedly affected by logging near rivers in Tennessee and Virginia.

Congress agreed to again include in its fiscal year 2022 appropriations bill the rider that prohibits the U. S. Fish and Wildlife Service from listing sage-grouse under the Endangered Species Act.  This language has been included since 2014, allegedly as the result of oil and gas industry lobbying.  It became law on March 15.

OTHER WILDLIFE NEWS

On April 22, a county judge in Ventura County upheld two local ordinances that designate standards for development and require environmental reviews for projects that may hinder wildlife connectivity.  The ordinances help protect the wildlife corridors that connect the Los Padres National Forest, Santa Monica Mountains and Simi Hills.  Habitat connectivity is crucial for the survival of mountain lions, gray foxes, California red-legged frogs and other wildlife in the region, and the Forest Service participated in identifying the corridors.

The Shawnee National Forest has temporarily closed Service Road No. 345 to allow safe passage for many species of amphibians and snakes during a critical time of migration.

Upcoming public lands regulatory actions

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On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies.  I’ve pulled out the Forest Service and BLM entries below.

This link was provided in this blog post focused primarily on the Endangered Species Act and “the regulated community” (and on undoing Trump administration regulatory changes).  The one individual species proposal that may affect (eastern) national forests concerns the northern long-eared bat, and possible critical habitat designation (it is currently listed as threatened).  It also notes proposed rules by the Council on Environmental Quality revising National Environmental Policy Act implementing regulations (targeting climate change).

USDA/FSProposed Rule StageSpecial Uses–Cost Recovery0596-AD35
USDA/FSProposed Rule StageCommunications Uses–Programmatic Administrative Fee0596-AD44
USDA/FSProposed Rule StageLaw Enforcement; Orders; Enforcement of Public Health and Safety Measures0596-AD50
USDA/FSProposed Rule StageAlaska Roadless Rule Revision0596-AD51
USDA/FSProposed Rule StageChattooga Wild and Scenic River0596-AD52
USDA/FSProposed Rule StageWeeks Act Reviews0596-AD53
USDA/FSFinal Rule StageRange Management–Excess Use/Unauthorized Use0596-AD45
DOI/BLMProposed Rule StageRights-of-Way for Communications Including Broadband1004-AE60
DOI/BLMProposed Rule StageBonding1004-AE68
DOI/BLMProposed Rule StageRights-of-Way, Leasing and Operations for Renewable Energy and Transmission Lines1004-AE78
DOI/BLMProposed Rule StageWaste Prevention, Production Subject to Royalties, and Resource Conservation1004-AE79
DOI/BLMProposed Rule StageRevision of Existing Regulations Pertaining to Fossil Fuel Leases and Leasing Process 43 CFR Parts 3100 and 34001004-AE80
DOI/BLMProposed Rule StagePart 4100-Grazing Administration-Exclusive of Alaska1004-AE82
DOI/BLMProposed Rule StageRegulations for the Protection, Management, and Control of Wild Horses and Burros1004-AE83
DOI/BLMProposed Rule StageRegulations Pertaining to Leasing and Operations for Geothermal1004-AE84
DOI/BLMFinal Rule StageMinerals Management: Adjustment of Cost Recovery Fees1004-AE81
DOI/BLMFinal Rule StageOnshore Oil and Gas Operations-Annual Civil Penalties Inflation Adjustments1004-AE85

Some litigation and other loose ends from November-December 2021

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A holiday gift?  Header links are to news articles.

(New case.)  In a December 7 lawsuit against the U.S. Department of Labor, a group of Colorado river guides claim the federal government has arbitrarily imposed a $15 minimum wage on the outdoor industry, rendering extended tours through public lands less attainable.  The article includes a link to the complaint.

(New case.)  On November 29, the Center for Biological Diversity sued the U. S. Fish and Wildlife Service over a Trump administration rule that expanded hunting on national wildlife refuges when it determined that listed species found in or near the refuges would not be adversely affected by the expansion.  Species mentioned the grizzly bear, jaguar, ocelot, jaguarundi, Audubon’s crested caracara, wood stork, and whooping crane.  The article includes a link to the complaint.

(Update.)  The U.S. Fish and Wildlife Service and multiple conservation groups reached an agreement to conduct a new Endangered Species Act status review of California spotted owls by Feb. 25, 2023. The stipulated settlement stems from a suit the Center for Biological Diversity and other groups filed against the Trump administration in 2020 for not adding the spotted owl to the list of endangered species.

(Follow-up.)  A proposal to add the Pearl River map turtle to the federal endangered species list was published on November 23 by the U.S. Fish and Wildlife Service after two environmental groups sued the agency last year for missing the determination deadline by a decade.  The proposed listing (the article contains a link) mentions the Bienville National Forest in Mississippi favorably.

The U.S. Fish and Wildlife Service (Service) published a final rule revising the critical habitat designation for the northern spotted owl.  The final rule rescinds a previous rule issued by the Trump Administration on January 15, 2021, which would have excluded approximately 3.4 million acres from the species’ critical habitat designation.  We talked more generally about critical habitat and spotted owls here.  Related litigation was discussed here.

Oregon Democratic Sens. Jeff Merkley and Ron Wyden announced legislation to establish a new national monument in central Oregon on BLM lands.  According to Merkley’s press release, the proposal has the support of several conservation groups as well as the city of Mitchell, which has seen economic benefits from Painted Hills tourism and visiting cyclists.

The Rio Grande National Forest announced the inclusion of an administrative change in its revised  forest plan. The change addressed recently acquired lands that were not included in the Rio Grande National Forest’s land base when the plan was revised.

The 2012 Planning Rule allows administrative changes for “corrections of clerical errors to any part of the plan, conformance of the plan to new statutory or regulatory requirements, or changes to other content in the plan (§219.7(f)).”  Hmmm.

 

Weiland on Critical Habitat and Proposed ESA Rule

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I always find the many complexities and permutations of ESA to be confusing, and I’m always appreciative of Jon helping me out. And various definitions of critical habitat have been the source of controversy for forests in the Pacific Northwest.

I ran across this piece by Paul Weiland in a law firm’s newsletter that seems to be relatively clear.

His argument is generally:

This shift away from an explicit definition of habitat that provides for transparency and consistency in agency decisions is contrary to sound public policy, will erode faith in government decision-making, and is unlikely to lead to improved conservation outcomes for species protected under the Act.

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In the absence of a definition of the term habitat prior to December 2020, there was substantial controversy and confusion regarding the scope of the federal government’s authority to designate critical habitat.  This came to a head in a case ultimately decided by the U.S. Supreme Court in 2018 regarding the designation of critical habitat for the dusky gopher frog in the American southeast.  In its decision, the Court clarified that “’critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.” In other words, as a threshold matter, an area must be habitat before the federal government can consider whether to designate it as critical habitat.

 

That begged the question, what is habitat for species that are protected under the ESA and led the government down the path to the definition promulgated just a year ago.  For the purposes of designating of critical habitat, the federal wildlife agencies then defined habitat as “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”

 

The agencies considered adopting a definition drawn from the literature in the field of ecology, but ultimately decided that in that field there was no settled definition of the concept. That may seem nonsensical on its face. One might fairly presume that researchers and practitioners in wildlife and fish biology work from a common definition of the foundational term habitat, but it’s not so. In fact, an article on the subject 25 years ago by Hall and colleagues surveyed the literature on habitat and found that the term is used in a manner that is vague and imprecise in most cases, and where imperiled species are involved references to habitat can be dangerously unclear or incorrect.

 

Despite this and the routine misuse of the term “habitat” in agency determinations and implementation of conservation actions under the Act, there are certain elements of the definition of habitat on which there is broad agreement in the scientific community.

 

  • Habitat is a species-specific concept. Each species has its own habitat, which may overlap in space and time with habitats of other species.
  • Habitat is composed of both (i) a combination of abiotic (physical) and biotic (living) components and (ii) ecological processes.
  • Habitat must be capable of supporting a species during one or more of its life stages. It must be habitable, though it need not be occupied at all times and may in fact be unoccupied for extended periods of time.

Each of those three elements of habitat are incorporated into the present definition that ostensibly guides the federal wildlife agencies.

 

In the proposed rule seeking to rescind but not replace the definition of habitat, the federal wildlife agencies offer the first and principal rationale that the definition could constrain the ability of the federal wildlife agencies to designate landscape areas as critical habitat — specifically, where such landscape areas do not currently or intermittently contain the resources and conditions necessary to support one or more life processes of a species.

 

The agencies reason that certain geographic areas should be considered habitat because even though they do not currently accommodate the resources and conditions necessary to support one or more life processes of a species, they could do so at some point in the future, either as a consequence of natural processes or human intervention. The problem with that reasoning is that it is directly at odds with the third element identified above — an area must be habitable to be habitat. The concept of habitat loses its meaning if it extends to any area that may at some point be habitat as a consequence of natural processes or human intervention.

Maybe someone can explain.. it doesn’t sound like the new regulation fits with the Supreme Court decision.. what nuance am I missing?
It also seems that with climate change, you could potentially say that everything north or at higher elevation of current habitat, could be future habitat because of climate change,as Weiland points out. He also discusses the utility of defining habitat versus not defining habitat.

The reality is that under the previous administration the federal wildlife agencies saw value in defining habitat for the purpose of designating critical habitat, because it would provide guidance to decision-makers and resource managers, promote the uniform application of the law, and reduce regulatory uncertainties. In contrast, under the current administration the federal wildlife agencies see value in the absence of a definition of habitat for the purpose of designating critical habitat, because it would provide discretion to agency regions, offices, and staff. That would potentially allow extraordinarily broad geographic areas to be characterized as habitat for listed species, thereby expanding regulatory authority. While some may see greater value in the latter set of goals than the former, the new rule undermines sound public policy both because it will reduce transparency in government decision-making and because it will result in inconsistent application of the law. It is not possible to make a credible argument that the current proposal is more in line with science and the scientific literature regarding habitat than the existing rule.

Possible Salvage Strategy for Dixie and Caldor Fires

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Since a battle for salvage projects is brewing, I think the Forest Service and the timber industry should consider my idea to get the work done, as soon as possible, under the rules, laws and policies, currently in force. It would be a good thing to ‘preempt’ the expected litigation before it goes to Appeals Court.

 

The Forest Service should quickly get their plans together, making sure that the project will survive the lower court battles. It is likely that such plans that were upheld by lower courts, in the past, would survive the inevitable lower court battles. Once the lower court allows the project(s), the timber industry should get all the fallers they can find, and get every snag designated for harvest on the ground. Don’t worry too much about skidding until the felling gets done. That way, when the case is appealed, most of Chad Hanson’s issues would now be rendered ‘moot’. It sure seems like the Hanson folks’ entire case is dependent on having standing snags. If this idea is successful, I’m sure that Hanson will try to block the skidding and transport of logs to the mill. The Appeals Court would have to decide if skidding operations and log hauling are harmful to spotted owls and black-backed woodpeckers.

 

It seems worth a try, to thin out snags over HUGE areas, while minimizing the legal wranglings.

Recent forest plan litigation

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Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.

Flathead court decision

The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout.  The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements.  The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects.  I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.

This article quotes the judge on the crux of the case regarding grizzly bears:

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Additionally, the article continues:

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.

A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.

This article quotes timber industry intervenors:

“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.

Colville new lawsuit

There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.

One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.”  The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.

The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):

The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.

Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.

The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.

The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.

It’s great that they actually projected the amount of late forest structure.  Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions.  I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing).  The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?

The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.

This is an important interpretation of what they think their forest plan requires.  Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.

Practice of Litigation Friday: Fire in Pacific Fisher Habitat

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U. S. Fish and Wildlife Service

This recently filed case (the complaint is at the end of the article) hasn’t generated a lot of news coverage, but it directly raises some of the questions we have discussed at length about the effects of fuel reduction activities.

On March 26, 2021, three California conservation groups filed a complaint for declaratory judgment and injunctive relief against the Forest Service and Fish and Wildlife Service in the federal district court for the Eastern District of California (Unite the Parks v. U. S. Forest Service).  They are challenging, “the failure … to adequately evaluate, protect, and conserve the critically endangered Southern Sierra Nevada Pacific fisher … on the Sierra, Sequoia, and Stanislaus National Forests …” after a substantial reduction in habitat since 2011 resulting from a multi-year draught, significant wildfires and Forest Service vegetation management.  Many of the variables considered in a prior 2011 analysis have been adversely affected by these changes. The plaintiffs implicate 45 individual Forest Service projects.

This fisher population was listed as an endangered species on May 15, 2020, and the agencies conducted “programmatic” consultation at that time on 40 already-approved projects.  The agencies reinitiated consultation because of the 2020 wildfires, but did not modify any of the projects.  The purported rationale is that the short-term effects of the vegetation management projects are outweighed by long-term benefits, but plaintiffs assert, “There is no evidence-based science to support this theory…,” and “the agencies ignored a deep body of scientific evidence concluding that commercial thinning, post-fire logging, and other logging activities conducted under the rubric of ‘fuel reduction’ more often tend to increase, not decrease, fire severity (citing several sources, emphasis in original).  The complaint challenges the adequacy of the ESA consultation on these projects, and the failure to “prepare landscape-level supplemental environmental review of the cumulative impacts to the SSN fisher…” as required by NEPA.

Not mentioned in the lawsuit is the status or relevance of forest plans for these national forests, two of which (Sierra and Sequoia) are nearing completion of plan revision.  However, the linked article refers to an earlier explanation by the Forest Service that they would not be making any changes in the revised plans based on the 2020 fires because they had already considered such fires likely to happen and had accounted for them.  ESA consultation will also be required on the revised forest plans, and should be expected to address the same scientific questions, arguably at a more appropriate scale.  Reinitiation of consultation on the existing plans based on the changed conditions should have also occurred under ESA.  (This is another area where legislation has been proposed to excuse the Forest Service from reinitiating consultation on forest plans, similar to the “Cottonwood” legislation that removed that requirement for new listings or critical habitat designation.)

(And in relation to another topic that is popular on this blog, Unite the Parks also supports the establishment of the Range of Light National Monument in the affected area.)