ESA

Who gets to be “in the room”

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Discussion about the unfair access of litigants to decision-makers ignores the privileged position of local governments and economic interests during the planning process.  That is illustrated by this account of a meeting between the Forest Service, ESA regulatory agencies and northeast Oregon ranchers and county commissioners concerning revision of the Blue Mountains forest plans and changes in grazing requirements.  It sounded good up through the point where a forest supervisor said, “It was a productive meeting.  People said we need to do this more often — get around the table and share our thoughts in a respectful way.”

But here’s what the local public is taking home from the meeting (I’ve added the italics):

One of the major bones of contention with the plan among ranchers was something referred to as Watershed Condition Framework, which would require ranchers to leave taller grass stubble after grazing.  “We got buy-in from the Forest Service that Watershed Condition Framework is out the door,” Nash said.  (WCF is actually a national requirement.)

Matt McElligott of North Powder was asked to attend the meeting as a representative of the cattle industry. He said the county commissioners and the ranchers asked that the Forest Service use grazing guidelines and not standards. The commissioners also asked that those guidelines be assessed allotment by allotment rather than across the more than 5 million acres on the three forests.  “When we left the meeting the other day, we got close to all the points the commissioners wanted,” McElligott said.

Those in attendance methodically went over each point step by step, hashed out the terminology and agreed to the items proposed for inclusion in the Pacific Northwest Regional Forester’s Record of Decision due early next year, McElligott said.

This seems to me to create a lose-lose situation.  Either the attendees get what they want and the Forest Service and regulatory agencies look like they are making backroom deals, or they don’t and they feel betrayed (and might sue).  A reason why such “collaboration” is not a substitute for public involvement and NEPA – or for litigation.

WA murrelet strategy should “meet only minimum federal standards for protections”

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At least that’s what the Washington state politicians are urging their Department of Natural Resources to adopt for its lands.

The DNR is currently considering five different proposals to protect the bird species. A final decision is expected within the next few weeks. Walsh has come out in favor of “alternative B” which he says would meet minimum federal standards for species preservation while ensuring the least amount of negative impact on local economies.

A press release noted that Walsh, and his peers who signed off on the letter to the DNR, believe that reduced timber sales in coastal communities would “create significant economic hardship on counties and communities that can least afford it.”

In other words, let’s manage this species so it stays on the edge of extinction.  This is why we have endangered species (and a federal Endangered Species Act).

Sage grouse planning do-over

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This article discusses the last Trump/Zinke twist in the effort to prevent sage listing of the greater sage grouse under ESA.  While sage grouse habitat on federal lands is mostly under BLM jurisdiction, the Forest Service is also a big player, and 20 forest plans were amended in 2015 to include conservation measures that were relied on by the Fish and Wildlife Service in its decision to not list the sage grouse.  Many of the laws and principles in play here also apply to other at-risk species on national forests.  Here are is one principle from Republican Wyoming Governor Matt Mead that I think is especially relevant right now:

“We can’t have wholesale changes in wildlife management every four or eight years. I don’t think that is the best way to sustain populations or provide the necessary predictability to industry and business in our states.”

And then there’s this:

The oil and gas industry group Western Energy Alliance has called for action following the federal review of the sage grouse plans. The group was not one of the key players in developing the plan in Wyoming, but has been vocal on the need for changes that support energy development.

(Where have we heard complaints about something like this before?)

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

New lawsuit on Arizona copper mine and jaguars

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The Coronado National Forest has been sued by the Center for Biological Diversity for approving the Rosemont copper mine.  The U. S. Fish and Wildlife Service is also a defendant because the issues involve ESA consultation on the mine.

The Rosemont Mine would “significantly impact a number of endangered species and their remaining habitat, including one of the three known wild jaguars in the United States,” said the center.

The mine’s footprint lies “squarely in jaguar critical habitat” important for the survival and recovery of jaguars in the United States, the Center said, cutting through the home territory of “El Jefe,” one of three jaguars spotted in Arizona’s mountain, the center said.

In the lawsuit, the center said that the mine would affect 5,431 acres of land in the Coronado National Forest, including hundreds of acres used as a “dumping site” for more than a billion tons of waste rock and tailings facilities. Approved by the Forest Service, the Rosemont Mine would also include hundreds of acres of fencing that would present a “permanent barrier to wildlife movement.”

“The Rosemont Mine would turn thousands of acres of the Coronado National Forest into a wasteland,” wrote Marc Fink, an attorney for the group. “Even though the agencies found it would permanently damage endangered species and precious groundwater resources, they’re letting the mine proceed,” he said.

The decision to permit the mine required a forest plan amendment.  The Forest Service provided this rationale:

“I have decided to amend the 1986 Coronado forest plan by creating a new MA that provides for
mining of privately held mineral resources while allowing other forest uses to the degree that they are safe, practical, and appropriate for an active mining or postmine environment. Standards and
guidelines have been developed specifically for this new MA (MA 16). See the FEIS, pp. 117–120,
for details. In so doing, this project meets the requirements of 36 CFR 219.

I have determined that this programmatic amendment of the 1986 forest plan is not significant
because it would not significantly alter the multiple-use goals and objectives for long-term land and resource management for the forest as a whole.”

The requirements of “36 CFR 219” it allegedly satisfied were those from the 1982 planning regulations.  The amendment was allowed to proceed under the old regulations because it was initiated prior to the 2012 Planning Rule.   However, both sets of regulations require that forest plans provide for recovery of listed species.  There could be an NFMA violation as well.

Forest planning for hunting

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“A number of environmental groups, including the Endangered Species Coalition, want to keep hunters who use packs of dogs out of public lands in Wisconsin, including the state’s national forests.  The groups say the hunters and their dogs have made the public lands inhospitable, and they want the federal government to launch an investigation into the practice.  Robert Williams is a Madison resident who frequently camps on public lands in northern Wisconsin. He says the packs of hunting dogs wreak havoc on the native wildlife.”

This brings to mind a similar situation in Louisiana. In 2012 the Forest Service amended the Kisatchie National Forest plan to prohibit the “age-old tradition” in Louisiana of hunting deer with dogs because of user conflicts.  In Louisiana Sportsmen Alliance v. Vilsack, a federal district court upheld the forest plan amendment. It stated: “We are conscious of the fact that KNF is a National Forest, owned by the United States and to be utilized in the best interests of all. The law empowers the agency to make precisely the kinds of decisions made here.”  (The Fifth Circuit then held that plaintiffs had not established standing to sue and dismissed the case.)  If the agency has the authority to regulate recreation that impacts species listed under ESA, then its failure to do so in Wisconsin might violate the law.  (However, under the 2012 Planning Rule, forest plans do not directly regulate users by themselves, and a separate closure order would be required.)

Fuel treatments to save an endangered species

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The case of the Mount Graham red squirrel seems to be another example of where everyone agrees that fuel treatments make sense.  According to the U. S. Fish and Wildlife Service, loss of habitat to fire is the primary threat to this species.  The draft recovery plan was revised in 2011 largely due to unanticipated increases in the fire threat.  It describes management occurring on the Coronado National Forest:

The Pinaleño Ecosystem Management (PEM) demonstration project, implemented from 2000
through 2008, is a large project in the mixed conifer zone of the Pinaleños. The PEM project
involved thinning, piling, burning, and sometimes broadcast burning in an area occupied by the
Mount Graham red squirrel, northern goshawk, Mexican spotted owl, and numerous USFS
Sensitive Species.

Currently (2011), the Coronado National Forest has also proposed a larger fuel reduction and forest restoration project called the Pinaleño Ecosystem Restoration Project (PERP). This project is designed to help reduce the threat of catastrophic wildfire in much of the remaining mixed
conifer zone, and will begin to set the forest on a trajectory that will allow a low-intensity fire
cycle. Large-diameter trees, snags, and logs of all canopy species will be retained, while select
smaller-diameter under- and mid-story trees will be removed to achieve desired forest conditions
(considering species composition, life form structure, and landscape matrix of age classes). The
mixed conifer forest currently has the largest block of remaining squirrel habitat, and monitoring
of impacts to the red squirrel and its habitat is incorporated into the project’s design. This
project is currently undergoing formal consultation, and will take a decade or more to complete.
The success of this project in reducing the threat of stand-replacing wildfire, while having
minimal short-term impact on the Mount Graham red squirrel, will be key to setting the stage for
recovery of the species.

The project was ongoing in 2015, and there was apparently no litigation.  (The Center for Biological Diversity has been active in challenging the main human threat – astronomers.)  The key seems to be the mitigation measures that led to the FWS concluding there would be “minimal short-term impact” (and the squirrel’s limited range of around 12,000 acres probably helps).  How then to interpret this statement in a story about a fire there this summer?

“Until they do something with the Endangered Species Act, we’re going to continue to have these (fires) because they don’t let them thin the mountain up manually because of the squirrel,” Weech said.

Wildlife and last year’s eastern wildfires

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“Endangered snail survives devastating fall wildfires” and other stories from the Smoky Mountains.

The snail was placed on the federal endangered species list in 1978. Before the fires, the only place in the world it was known to exist was a 2-mile stretch the southern side of the Nantahala River Gorge in Swain County.

After the fires, biologists found snails in an area about 5 miles long and extending to near the top of the ridge, a much broader area than ever thought, he said.

One interesting point is that the drought that led to the fire may have also caused these less mobile species to seek out wetter areas that gave them more protection from the fire.

Some red meat for the anti-litigation crowd

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Here’s a story about an enjoined timber sale that might be burning up right now.  It will no doubt become Exhibit A for arguing why we should not allow the public to sue the government over its land management decisions.

“Both the Park Creek and Arrastra Fires on the Helena-Lewis and Clark National Forest were ignited by lightning storms that spread through dense stands of dead timber. And both are located within the area of the Forest Service’s proposed Stonewall Vegetation Project, which was halted when two environmental litigant groups successfully convinced a federal judge to issue a preliminary injunction to halt the project.”

I just have to question the conclusions:  “The preliminary injunction against the Stonewall project, and the resulting fires …”  and the idea that environmental litigants should be “held accountable for their actions.” First there is the question of what exactly their actions caused (the fires?), and second is the idea that there should be liability associated with winning a lawsuit.  I think the judge allocated accountability in this case to the Forest Service for failing to follow the law.  They could have reconsulted on lynx critical habitat long ago, and the court said they should have, and if they had, the project would have probably occurred on schedule.

 

Giant Sequoia National Monument

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With the general public becoming enraged about Giant Sequoia logging scenarios, here is a picture of some Bigtrees in what used to be the Sequoia National Forest. Chances are, the review will recommend keeping all groves within the Monument, adding some buffer zones and connectivity, then returning a large portion, including logging roads, skid trails, plantations and stumps, back to the National Forest.

The ‘Trumpspiracies’ abound on the Sierra Club’s Facebook fundraising content comments. They make up these elaborate and unlikely situations where the “logging companies” would come in and make wild profits off of cutting Giant Sequoias. Some think that they would be cut to burn for power. More were sure that oil wells and mining would happen once the trees were gone. One insisted that the wood could be exported, milled and made into tables, “destined for the Arabian Peninsula”. Many are comparing this National Monument review to the destruction of historical sites by radical Islam. If you’re going to oppose actual Trump era actions, maybe, just maybe, one should actually use facts?

With Sequoias being a rather sensitive issue, what shall we do, when very soon we will need to thin some of these Giant Sequoia plantations, scattered throughout the Sierra Nevada? Here’s a sample of one on the Eldorado.