ESA

FOIA in the Supreme Court

by

The U. S. Supreme Court has issued its decision in United States Fish and Wildlife Service. v. Sierra Club (March 4, 2021), the Freedom of Information Act case we have discussed previously.  The EPA changed its proposal for cooling water intake structures at power plants after receiving a draft biological opinion from the consulting agencies that found the proposal would jeopardize listed species.  In a 7-2 decision, the Court reversed the lower court decisions and held that a draft biological opinion on the effects of the original proposal, which was shared informally between the EPA and the consulting agencies, was exempt from disclosure under FOIA as a predecisional and deliberative document.  Specifically, “the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.”  This shows that the consulting agencies did not “treat them as final,” which is consistent with the context of the consultation regulations.

The ESA consultation process makes this case more confusing than it needs to be.  Normally, drafts circulated among members of a government team would qualify as deliberative, but here the team is comprised of multiple agencies following prescribed interagency consultation procedures.  A “draft” biological opinion is specifically identified by consultation regulations, and it must be provided by the consulting agencies if requested by the action agency.  In this case, the draft was provided by consulting agency staff without official signatures.  Without those signatures, it was not the final position of the consulting agencies, even though it had the effect of EPA changing its proposal.  With those signatures, apparently a draft biological opinion would have been “final” for the purpose of FOIA, and should have been disclosed.  (This may or may not have been the result of good lawyering, but it would be good lawyering to so advise in the future.)

The Court doesn’t dig into the other aspects of this FOIA exemption, one of which is that factual material is not deliberative and must be released, or therefore the question I raised about the need to disclose the science on which the deliberations were based. Apparently, that would happen here on a remand to determine what is “segregable” non-exempt material.  I wonder whether the scientific conclusions about the effects of the original EPA proposal are also considered deliberative because they were not yet “officially approved.”

A more typical case, which does address this question, is this new one from the D. C. District Court involving Florida Key deer and its Species Status Assessment (Sierra Club v. United States Fish and Wildlife Service, Feb. 26. 2021).

On its face, a factual scientific report, produced “independently from any” regulatory or policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative…  Nothing in this description indicates that the report contains “advisory opinions, recommendations[, or] deliberations” regarding the agency process at issue.

Yet, while the privilege does not generally extend to mere factual recitations, (citation omitted) “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.”  Such hesitation stems from the recognition that the drafter’s selection of facts can itself reveal the decisionmaking process.

This case also addresses the need for agencies to demonstrate harm to their deliberative process that would result from disclosing these records, which the Supreme Court does not address in the EPA case.  Public response to the case, including suggestions for congressional action, is discussed here.  (This article includes a picture of the the power plant at issue.)

North Versus Hanson

by

Experts Frustrated by Stalled Efforts to Counter Megafires

“Use every damn tool you’ve got,” he said. “If we could have beavers on crack out there I’d be donating to that process — anything that will speed up the pace and scale of this thing.”

Dr. Malcolm North

Hundreds of Giant Sequoias Considered Dead From Wildfires

by

It appears that rumors of ‘natural and beneficial’ wildfires in the southern Sierra Nevada have been ‘greatly exaggerated’. Even the Alder Creek grove, which was recently bought by Save the Redwoods, was decimated. Of course, this eventuality has been long-predicted.

https://www.latimes.com/environment/story/2020-11-16/sierra-nevada-giant-sequoias-killed-castle-fire

ESA update

by
National Audubon Society Field Guide

There’s a lot of news recently, mostly about litigation, all with implications for public land management.

(Notice of Intent.)  The Forest Service litigation weeklies seemed to have missed this one involving the Forest Service.  On September 23, the Center for Biological Diversity and the Western Watersheds Project notified the Forest Service, BLM and Fish and Wildlife Service of their intent to sue over the effects of livestock grazing on the Gunnison sage-grouse.  They allege, “failure to reinitiate consultation in light of the species’ decline and the best available science, their failure to implement the BiOp’s (biological opinion) conservation measures, and the likely exceedance of the BiOp’ incidental take statement…”

Note:  The decision challenged appears to be a “Candidate Conservation Agreement” made when the species was proposed for listing, and the “conference” on that for the proposed species which was adopted as the biological opinion after it was listed.  In it the Forest Service and BLM agree to adopt “conservation measures” for the Gunnison sage-grouse.  The CCA says that, “The GUSG CCA is not a decision document …,” but, “The GUSG CCA is consistent with the 1992 BLM Gunnison Field Office Resource Management Plan; USFS Land and Resource Management Plan for the Grand Mesa, Uncompahgre and Gunnison National Forests …”

The reason why there was consultation under ESA on this “non-decision” (rather than the forest plan and/or project-level grazing authorizations) is because it would provide a “programmatic” consultation and opinion on types of federal actions that may be taken in the future that “are likely to have insignificant or discountable effects to the species or habitat,” such as fences and small-scale water developments for grazing (and other activities related to recreation and other developments).  The CCA should have no force or effect except between the action agencies and the FWS, and I understand the primary benefit of consulting on it is to streamline subsequent consultation on individual future actions that it covers.  It would be interesting to see what a court would do with this without an actual “decision” by the action agencies.

That was probably more than anyone else was interested in, but here’s some more straightforward ESA actions that may affect public management.

(Settlement of Center for Biological Diversity v. Bernhardt, Eastern District of North Carolina.)  The Fish and Wildlife Service has agreed to complete a revision of the recovery plan for the red wolf by February 28, 2023.  The few remaining wild individuals are found near the Outer Banks of North Carolina, but CBD has provided a report on potential reintroduction areas that include the two national forests in Florida, four national forests in Virginia and West Virginia, three national forests in Arkansas and Missouri, five national forests in North Carolina, Tennessee and Georgia, and the Talladega National Forest in Alabama

(New lawsuit, Fish and Wildlife Service.)  On September 29, three conservation groups filed a complaint in the federal district court for the Northern District of California against the decision to not list the bi-state sage-grouse under the Endangered Species Act.  The challenge focuses on the failure of “voluntary” mechanisms to stem the decline of the species.  The complaint does not mention the Forest Service, though the species occurs on the Humboldt-Toiyabe National Forest, which amended its forest plan in 2015 to adopt conservation measures.  (AP article here.)

(New lawsuit, Fish and Wildlife Service and BLM.)  On September 29, the Center for Biological Diversity alleged in the Nevada federal district court that the Fish and Wildlife Service “unreasonably delayed” a decision on a petition to make an emergency listing decision for the species, and that the BLM failed “to protect the wildflower in accordance with FLMPA and BLM policies, as the Center’s petition requested.”  The species is found only in an area coveted by mining companies seeking lithium and boron (previous litigation was discussed here).  The emergency circumstances arose from the recent mysterious physical removal of 40% of the remaining individuals, discussed in this article.

(New lawsuit, Fish and Wildlife Service.)  On September 30, several organizations and individuals challenged the removal of the Louisiana black bear from the list of threatened and endangered species in 2016.  The suit says that the FWS is attempting to pass off non-native bears (introduced from Minnesota in the 1960s) or hybridized black bears as true Louisiana black bears to claim that recovery goals have been met.  The species is found on the Kisatchee National Forest.

(Notice of Intent to Sue the Fish and Wildlife Service.)  Following prior litigation requiring it to reconsider its decision to not list the wolverine, on October 13 the FWS withdrew its current proposed rule to list the species as threatened.  On the same day, Earthjustice submitted its NOI to the agency.  The FWS states that the wolverine is expanding its range and would be less affected by climate change than previously thought (discussed in this article.)

  • New species listings

On September 29, the Fish and Wildlife proposed to list the Wright’s marsh thistle as threatened under the Endangered Species Act.  Two of the eight known locations are on the Lincoln National Forest, but involve less than an acre.  They are mostly threatened by the effects of climate change on water availability since these areas are not being grazed.  (Here is a local article.)

On September 29, the Fish and Wildlife Service also proposed to list two species of eastern mussels as threatened, and designated critical habitat on the Allegheny and Daniel Boone National Forests. Habitat for both the longsolid and round hickorynut mussels is threatened by timber operations (among many other things), is widely distributed, and is likely found on other national forests.  (Here is a local article.)

Good news for wildlife on two national forests

by

Here are two different kinds of success stories about restoring wildlife species that have been missing from national forests.

 

 

Grizzly bears – Lolo National Forest.

Current efforts on the Lolo National Forest demonstrate one way that forest plans can improve conditions for at-risk species; in this case the plan is contributing to conservation of the federally threatened grizzly bear. Grizzly bears have been sighted in recent years in this part of the Forest, but none are females or considered to be residents.

In 2011, the forest plan was amended to include what is commonly referred to as the Access Amendment (similar amendments also applied to the Kootenai and Idaho Panhandle national forests, prior to the revision of their forest plans).  The amendment established “standards” for motorized road and trail density in grizzly bear management units (BMUs, there is one on the Lolo).  In many cases, the current conditions did not meet these standards, so in the terminology of the 2012 Planning Rule, these would be desired conditions or objectives to be achieved.  In addition, their achievement was assumed in the biological opinion on the effects of the forest plan on grizzly bears prepared by the Fish and Wildlife Service, and failure to achieve them would likely trigger the need to reinitiate consultation on the forest plan (which had happened on the Flathead National Forest).  So there is a little added incentive, but here is what they are doing now.

The Forest has completed the “BMU 22 Compliance Environmental Assessment.”  In it they have proposed to formally close some roads that are effectively closed already and 21 trail miles currently open to motorized use.  In response to public comments, they are also considering an alternative that would close fewer trails, and instead close some roads currently open to motorized use.  In addition to other closures included with some prior vegetation management projects both alternatives “would bring the Forest into compliance with the Forest Plan motorized access management standards for the Cabinet-Yaak grizzly bear recovery zone.”

Brown-headed nuthatch – Mark Twain National Forest

The nuthatch is not at-risk range-wide, but they have not been found in Missouri for at least a century.  The species requires shortleaf pine and oak woodland forests, which have been greatly reduced from historic levels.  The loss of these forests has prompted an ecosystem restoration effort across Missouri, Arkansas and Oklahoma (notably using the Collaborative Forest Landscape Restoration Program).  Restoration of such forests is a desired outcome of the Mark Twain forest plan.  Curiously, there is no mention of the brown-headed nuthatch in the 2005 forest plan, although it does address other species using the same habitat:

Objective 1.4a Improve open woodland conditions on at least 10,500 acres to provide habitat for summer tanager, northern bobwhite, Bachman’s sparrow, and eastern red bat.

The EIS states that the nuthatch is a Management Indicator Species for forest plan monitoring, but that doesn’t seem to be in the plan itself.  Of course, a species that is absent from a national forest would not make a good MIS.  In any case, it looks like there was no interest by the Mark Twain in reestablishing a species that was not present on the forest under that rules applicable to forest planning in 2005.

However, Forest Service, state and university researchers came to the rescue of the species, determining that sufficient woodlands now exist in Missouri to support a population of Brown-headed Nuthatches, that populations in Arkansas were robust enough to supply birds to Missouri, but that nuthatches are not likely to make the return on their own because of the distance and habitat fragmentation.  The Mark Twain National Forest site was chosen for the release of 100 birds because it is the largest area of open pine woodlands in the state.

Under the 2012 Planning Rule, the Forest Service would probably argue that this species is not “known to occur” in the plan area, so the requirement to provide ecological conditions for it (as a species of conservation concern) would not apply.  However, the separate requirement for ecological integrity requires “species composition and diversity” to occur within the natural range of variation.  That should make the Forest Service more proactive in reestablishing species that historically occurred there.  (The forest plan also omits the listed red-cockaded woodpecker, which also uses these habitats, is also absent, but must be conserved and recovered.)

(For a look at how the natural range of variation might work under the 2012 Planning Rule see Table A-2, “Desired conditions for natural community types.”)

Judge: No evidence of ‘certain and great harm’ to grizzlies-Wyofile Story on Green River Litigation

by

This is just the rejection of a PI, but of interest. Here’s the link. Thanks to the reporter Angus Thuermer, for summarizing parts of the judge’s opinion.

A judge shared his reasoning Friday on why he refused to halt the killing of grizzly bears, killings that protect a historic Wyoming cattle drive and ranching operation on the Bridger-Teton National Forest.

Conservation organizations presented no evidence wildlife managers will remove more female cattle-eating grizzlies from federal Sublette County grazing allotments if he doesn’t immediately step in, U.S. District Judge Amit P Mehta said.

The conservation groups sued the U.S. Secretary of the Interior and others claiming the grazing plan violated the Endangered Species Act, among other laws, in part because it did not limit the removal or killing of female grizzly bears. Protected by the ESA, female grizzlies are a key component of the Yellowstone ecosystem population in question. The conservation groups sought an injunction to immediately stop the killings and removals.

But the nonprofits Western Watersheds Project, Yellowstone to Uintas Connection, and Alliance for the Wild Rockies “have not offered evidence of a ‘certain and great’ harm that is ‘likely to occur,’” while the case wends its way through court, Mehta wrote. In past years, an average of 0.7 female grizzly bears a year have been removed from the Upper Green River grazing area, the judge wrote. That suggests “the taking of more than one or two female bears during the pendency of this case is unlikely to occur.”

The conservationists did not convince the judge “that the killing of a single member of a threatened species constitutes irreparable harm, especially where, as here, the grizzly bear population has been growing for years,” Mehta wrote.

In reaching his conclusion, Mehta wrote that wildlife managers have several safeguards to ensure that the removal or death of female grizzlies to protect livestock does not endanger the Yellowstone Ecosystem population of an estimated 728 bears. “The lethal taking of a nuisance bear is a last resort,” Mehta wrote, “and there are many checks in the process to ensure that the killing of such a bear, especially a female, cannot be a sudden or spur-of-the-moment decision.”

Among the alternatives are trapping and relocating a suspected cattle-eating grizzly.

Western Watersheds and its allies wanted urgent action but were not urgent in their judicial appeal, Mehta also wrote. The plaintiffs waited more than three months before giving the government a required notice they were going to sue, Mehta wrote. That delay undermined arguments that the grazing plan required emergency intervention, he wrote.

The federal grazing allotments, authorized in 2019, allow ranchers to herd up to almost 18,000 animals, about 9,000 cow-calf pairs, onto the Bridger-Teton National Forest above the Green River. The U.S. Fish and Wildlife Service decided the plan posed no jeopardy to the continued existence of the Yellowstone Ecosystem grizzly.

In doing so, the federal wildlife agency bound the Forest Service to terms and conditions that call for a reassessment of operations should grizzly deaths exceed certain parameters. Ecosystem-wide, for example, Fish and Wildlife Service set the threshold for female grizzly mortality at 9% of the population.

But the Forest Service did not engage in “formal consultation” with FWS about the Kendall Warm Springs Dace, an endangered fish species whose only home on the planet is 984 feet of the 85-degree Kendall Warm Springs. A tributary of the Green River on the Bridger-Teton National Forest, the warm springs lie across the path of the Green River Drift.

Although grazing cattle are fenced out, cattle in the drift can pass through the 160-acre exclosure. That prospect alarmed the conservation groups who said the bovid herds would trammel the sensitive environment of the two-inch-long dace.

Ranchers agreed to either trail herds around the exclosure or truck them through, according to Mehta’s 31-page June 19 order. He rejected conservationists’ request for a “just-in-case” Warm-Springs-Dace injunction because “there is no additional relief that the court can grant.”

There’s other interesting stuff in the article. Here’s some info on the Green River Drift, in use since 1896. I guess there’s a story there somewhere bout how the dace survived drives for the last 124 years and what is different now.

Predating most federal land management agencies, the Green River Drift cattle trail has been continuously used since the 1890s by the Upper Green River Cattle Association ranchers to get cattle from spring pasture on the desert to summer pasture in the forest. Chilly fall weather causes the cattle to “drift” back out of the forest to return to their home ranches. The trail, 58 miles long with 41 miles of spurs, crosses BLM, State of Wyoming, National Forest, and private properties. It has played a pivotal role in the development of ranching in the area as well as in the development of relationships between Federal agencies that manage grazing allotments and private property owners. The Drift was listed on the National Register in November, 2013. Because it is still being used much as it has for more than 100 years, the Drift was listed as a Traditional Cultural Property (TCP), the first ranching related TCP in the nation.

Make forest plans great again (for wildlife)

by

 

I often point out how the Forest Service is shirking its responsibility to adopt forest plans that provide ecological conditions needed for diversity and viability of at-risk species.  Most recently, I listed some examples from the recently released Rio Grande revised forest plan.  Here is one guideline (there weren’t really any relevant standards):

EPC-G-1: To avoid or minimize adverse effects to listed species and their habitat, management actions should be designed with attention to threatened, endangered, proposed, or candidate species and their habitats. 

This says essentially nothing.

An important purpose of identifying and planning for at-risk species is to reduce the chance that they would need to be listed under the Endangered Species Act.  If this were a private landowner, conservation measures for at-risk (but not yet listed) species would be discretionary.  However, they could choose to sign a Candidate Conservation Agreement with Assurances (CCAA) with the listing agency to adopt conservation measures that would reduce the likelihood of listing in exchange for a commitment that the listing agency would not require anything more if the species did become listed.

Here is an example of one such enhancement of survival permit for Chinook Forest Partners, LLC Candidate Conservation Agreement with Assurances for Fisher in Oregon (until recently, a candidate for listing).  From the NEPA document (CE):

Activities that are covered by this CCAA and the associated section 10(a)(1)(A) permit are on-going and commonly practiced forest land management activities. These include timber harvest and hauling, site preparation and reforestation, and road maintenance and construction. Additionally, there may be some collection of minor forest products, fire suppression, and recreation (including legal hunting and trapping).

Goals and objectives for fisher include: improving our understanding of fisher distribution, densities, and habitat use, especially on non-federal lands where information is more lacking; conserving active fisher den sites to increase the survival of young; increasing public participation and support for fisher recovery and reintroduction by providing long-term assurances; and, monitoring potential future reintroduced fishers as they disperse from their release sites to determine success rates and provide information for improving success rates.

And here is what the private landowner committed to do in the CCAA to achieve those objectives for fisher (note: some are saying that this still isn’t good enough).  Given that the Forest Service is obligated by NFMA to provided ecological conditions for a viable population of at-risk species on national forests, why shouldn’t they be making at least this kind of commitment in their forest plans for public lands?  (This could make them adequate regulatory mechanisms to reduce the likelihood of listing under the ESA criteria.)

  • Specifically, CFP/CFM shall not conduct or authorize any of the activities described in the forest management activities in Section 4 (including but not limited to timber felling, pre-commercial thinning, reforestation, salvage of trees, prescribed burning, and brush control) within 0.25 miles of a den site, because those activities could result in disturbance or harm to denning fishers. CFM shall not authorize helicopter or fixed wing application of herbicide or fertilizer within 0.25 miles of an occupied den site between 15 March and 30 September until CFM is informed by USFWS or its agent the denning female has vacated the den site.
  • Provide protection of denning female fishers by restricting trapping and nuisance animal control activities on enrolled lands within 2.5 miles of den sites.
  • Report to USFWS, and ODFW or mutually agreed upon designated agents, within 48 hours upon finding any potentially occupied den sites or any dead, sick, or captured fishers on enrolled lands.
  • Cover all man-made structures on enrolled lands that pose an entrapment risk to fishers (e.g. large water troughs, old rail cars, or other containers from which fishers cannot escape) or place a device within the structure (e.g., wooden pole to allow fishers to climb out) to prevent mortality of fishers from drowning, starvation or dehydration
  • Where suitable habitat exists and where agreed upon by CFP and USFWS, allow the release of translocated fishers on enrolled lands
  • CFP will seek to have all of its timberlands third party certified to the Sustainable Forestry Initiative® (SFI),
  • CFP will take fisher habitat characteristics into consideration when assessing parcels for transfer or sale into permanent or semi-permanent conservation status.
  • Subject to safety, operability, fire hazard considerations, and salvage of timber following fire, windthrow or other natural or man-caused casualty, CFM will conserve existing and future standing deadwood, and, where available, focus leave tree retention on damaged, decayed, or deformed trees that are likely to provide or promote decay processes and structures beneficial to fisher or their prey.
  • CFM meets or exceeds the Forest Practices Act (FPA) live tree and snag retention, and down woody debris. For clearcut harvests greater than 25 acres, FPA requires that at least 2 snags or 2 green trees 30 feet tall and at least 11 inches DBH, at least 50% are conifer, plus at least 2 down logs or down trees at least 50% of which must be conifers that are at 6 least 6 feet long with a total volume of 10 cubic feet must be retained. CFM commits to retaining a minimum of 3 snags or green trees per acre on clearcuts larger than 25 acres, and these trees/snags will be retained for the life of the CCAA.
  • Trees >32” DBH will be retained the greatest extent possible, provided they do not pose safety hazards
  • CFM will instruct logging contractor to avoid whenever possible, driving machinery over, or otherwise damaging large down woody debris, thereby maintaining the integrity of stumps and logs that may be used by fishers and their prey.
  • CFM will seek to leave down woody debris and other structures important to fishers and their prey distributed throughout the unit instead of piling them into slash piles, will attempt to avoid mechanical damage or disturbance, and will locate skid trails around them where safety and operability considerations permit.
  • For slash piles documented as being used by fishers for denning on the enrolled lands, CFM shall not burn or otherwise mechanically alter such slash piles for a period of 5 years after the last year of known occupancy and use by a denning fisher.
  • CFM will avoid the use of rodenticides on lands enrolled in the permit area.
  • CFM will prohibit lessees from recreational trapping.

Trump’s latest marching orders on public lands

by
Trump – Nailed it

The Trump Administration declared the coronavirus pandemic to be a “national emergency” in March. On June 4, the president issued an executive order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”  It has been characterized as “waiving environmental protections,” in particular the National Environmental Policy Act and the Endangered Species Act, and would include actions taken on public lands. This has been condemned in the usual places.

It will be interesting to see how this plays out on federal lands, and whether it makes any difference.  Trump already has the pedal to the metal on development activities, so I wonder what more they could do – without actually violating a law.  Maybe we should expect more lawsuits.

Here’s some of the key language in the EO (with my emphasis):

Sec. 2.  Policy.  Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  (I assume that means other non-emergency authorities, and not other unlawful authorities 🙂 )

Sec. 5.  Expediting the Delivery of Infrastructure and Other Projects on Federal Lands

b)  To facilitate the Nation’s economic recovery, the Secretary of Defense, the Secretary of the Interior, and the Secretary of Agriculture shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

Sec. 6.  National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures.

b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

Sec. 7.  Endangered Species Act (ESA) Emergency Consultation Regulations.

(b)  The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, the ESA regulation on consultations in emergencies, to facilitate the Nation’s economic recovery.

Sec. 10.  General Provisions

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Of course an executive order can’t change the law or regulations, and this one explicitly refers to existing procedures that can be used in emergencies.  All I see Trump doing here is pointing out that there are existing authorities to expedite projects, and agencies should be using them.  But maybe the intent might be to expand the situations that are considered emergencies to include an economic recession.  I doubt that could be done “consistent with applicable law” related to emergency determinations.  Here is the language applicable to Forest Service NEPA (36 CFR §220.4):

The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources.

If there is a need to mitigate immediate harm to life, property or important resources, it would be consistent with applicable law to use the established emergency procedures.  There is either nothing new in the executive order, or if there is, we should expect it to be challenged.  (And then there is the question of why he waited three months to address this “emergency.”)

But these are dark days.  The Washington Post quoted an attorney at a large national law firm (Perkins Coie) that doesn’t usually represent environmental plaintiffs.  He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. “I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,” Jensen said, referring to actions in a Washington park this week. “It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.”

 

Private land conservation easements benefit national forest wildlife

by

In 2009, the owner of a golf course in Georgia donated a conservation easement to a non-profit land trust.  The easement included roughly 57 acres of primarily bottomland forests and wetlands along the Savannah River that would not be developed.  That land is directly across the river from the Sumter National Forest, 700 feet away.

To obtain a tax deduction for the conservation easement, it has to be “exclusively for conservation purposes” based on one or more of the criteria in the Internal Revenue Code.  They include:

(ii) the protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,

(iii) the preservation of open space (including farmland and forest land) where such preservation is–

(I) for the scenic enjoyment of the general public, or

(II) pursuant to a clearly delineated Federal, State, or local governmental conservation policy,

and will yield a significant public benefit,

These issues were recently litigated by the IRS for this easement in the 11th Circuit Court of Appeals, which found the donation to be eligible as both habitat (ii) and scenic open space (iii)(I).  IRS Treasury Regulations elaborate on these requirements with regard to habitat by including “natural areas which are included in, or which contribute to, the ecological viability of a local, state, or national park, nature preserve, wildlife refuge, wilderness area, or other similar conservation area.”  However, the court accepted expert testimony from the IRS that the easement did not support the forest’s ecological viability.

There is no mention of testimony from the Forest Service. The 2012 Planning Rule stresses that, planning for ecological integrity must take into account “conditions in the broader landscape that may influence the sustainability of resources and ecosystems within the plan area” (36 CFR §219.8(a)(1)(iii)).  In addition, where a national forest plan area can not maintain a viable population of a species of conservation concern, “the responsible official shall coordinate to the extent practicable with other Federal, State, Tribal, and private land managers having management authority over lands relevant to that population” (36 CFR §219.9(b)(2)(ii))).

The also court determined, regarding open space (iii)(II), that, “There is no qualifying federal, state, or local government conservation policy that applies to this land…” In fact, the Forest Service Open Space Conservation Strategy includes this vision: “Private and public open spaces will complement each other across the landscape to provide ecosystem services, wildlife habitat, recreation opportunities, and sustainable products.”

In this case, private land adjacent to a national forest was conserved, but there is no evidence that the Forest Service was even paying attention.  The Forest Service needs to be more alert to these opportunities that would benefit national forest resources as well as contribute to greater national conservation needs.  Maybe if the Forest Service promoted its conservation policies better, they would facilitate more donated easements and protect more habitat for wildlife species that also use national forests.

Along somewhat the same lines, conservationists in Florida are striving to conserve the Ocala to Osceola Wildlife Conservation Corridor, which would connect the two national forests of those names across 50 miles of multiple other ownerships (including a military base).  Here is a presentation by the U. S. Natural Resources Conservation Service, which uses funding from the federal Farm Bill Resource Conservation Partnership Program to purchase conservation easements and create wildlife habitat on private lands within the corridor.  (This is the kind of “governmental conservation policy” that should also support federal tax deductions for donated conservation easements.)

The federally endangered red-cockaded woodpecker is an excellent example of a species that the Forest Service needs to coordinate management with others for, and here’s a bit of the success story about that in the O2O Corridor.

A red-cockaded woodpecker (RCW) captured at Camp Blanding in Clay County is evidence that a project led by North Florida Land Trust to preserve land within the Ocala to Osceola (O2O) wildlife corridor is working.  The bird captured at Camp Blanding was the first time this endangered species had moved between one of the national forests and the military installation since they began banding and recording the birds over 25 years ago.

“USDA Forest Service” is listed as a “partner” by NRCS, and the “National Forest Service” by the North Florida Land Trust.  The latter gives me a sense of how deeply the Forest Service has not been involved, and I sure can’t find anything about this effort on either national forest website or using a national search.  It’s too bad the Forest Service isn’t providing more leadership (and getting more of the credit) for conserving its important wildlife resources.

The latest on forest plan revisions (and wildlife)

by

In the past couple of months the Forest Service has increased its family of forest plans revised under the 2012 Planning Rule to six.  The Chugach and Rio Grande national forests have joined the Francis Marion, Flathead, El Yunque, and Inyo.  The Forest Service revision schedule is over six months old, but the Helena-Lewis and Clark National Forest may be next.

Here’s what looks like a news release from the Rio Grande.

The plan prioritizes the use of active management to foster sustainable and productive use of the forest. Compared to the 1996 plan, this new plan is less prescriptive and emphasizes flexibility and commitments to working with the public. Management direction has been updated for all plant and wildlife species.

This seems to capture the mood of the Forest Service these days.  The only commitments it has ever liked are those they have to do any way, especially if they are check-the-box kinds of procedural commitments like “working with the public.”  In their “update” for wildlife, rather than commit to protecting wildlife as required by NFMA and the Planning Rule, they infuse the plan with discretion.  Here’s some examples of what the Rio Grande seems to feel (based on the best available scientific information) would “provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of conservation concern within the plan area” – which plan components “must” do (36 CFR §219.9(b)).

DC-SCC-2: Structure, composition, and function of coniferous forests, including late seral forests, meet the needs of associated species, including species of conservation concern. (Forestwide)

There is a series of these desired conditions for different ecosystems that all say the same thing, which is “we’ll figure out what these species need later.”  The Planning Rule requirement is for “plan components” to meet the forest plan requirement, not for project-by-project decisions about how to protect at-risk species.  Let’s see if the standards and guidelines add anything …

G-SCC-3: To maintain viability of species of conservation concern, reduce habitat fragmentation and maintain structural conditions of sagebrush ecosystems through design of management activities. Patch sizes should not be less than 5 acres. (Forestwide)

TEPC-G-1: To avoid or minimize adverse effects to listed species and their habitat, management actions should be designed with attention to threatened, endangered, proposed, or candidate species and their habitats. (Forestwide)

Wow.  Apparently any “structural conditions” will do, but they at least appear to concede that there is a minimum patch size needed for some species in sagebrush ecosystems (this is actually the kind of “specific” desired condition the Planning Rule envisioned), but conversely there is not enough science to tell them what is needed for anywhere else.  If the courts say this is good enough, then the Forest Service has essentially excised the diversity requirement for forest plans from NFMA.  (Never mind the question of “how much did the Forest Service spend on forest planning to get THIS?”)  (This is a continuation of a pattern discussed here, and may lead to some of the same kinds of problems under ESA.)