Legislation

Shout-Out to Megafire Action- FOFA Senate Bill Changes Analysis!

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Note: Bob Zybach and I posted these at almost the identical time yesterday, so I changed the time on this to today, so it would be more visible to folks. Also since then, Tom Erb of Senator Hick’s office posted on X that FOFA is an “abundance bill.” If you’re not familiar with the Abundance idea promoted in this book according to Wikipedia it’s generally about “better managing the trade-offs between regulations and social advancement.” It’s always interesting to see what larger movements have to contribute (or not) to forest policy, so if someone would like to read and review the Klein and Thompson book for TSW, that would be great!

When I first ran into Matt Weiner of Megafire Action, I wondered “who are these people?”, “why are they in our space?” and “why is he talking about wildfire and I am moderating the panel?”.  I felt challenged to gracefully accept new people interested in our policy arena, and not be suspicious. They are big fans of the Wildfire Center, and I have some reservations about it.  Nevertheless, this group, working with others, has been successful at moving FOFA along- likely in a way that the traditional groups would not have been, so “by their fruits” and all that.

Folks I have spoken with in the past have had trouble getting through to various D staffs about this bill because to some any changes affecting litigation possibilities are a non-starter.  Thanks to a dedicated effort by many groups, FOFA has arrived as a bipartisan bill to the Senate.  People have been asking me about changes between the House and Senate Bills, and it looks like this is a nice summary by Megafire Action. So many thanks to them, both for helping shepherd the bill through and providing this handy section by section analysis. Changes are noted in red in the document.

As an elderly wonk, FOFA reminds me a great deal of HFRA (pick certain areas and change the generic rules for projects for fuel treatments) and so I would have liked a more formal review of “why HFRA didn’t work” before starting FOFA, but that’s just me. Here’s the FS summary of HFRA (2003):

Healthy Forests Restoration Act

The Healthy Forests Restoration Act of 2003 (P.L. 108-148) contains a variety of provisions to expedite hazardous-fuel reduction and forest-restoration projects on specific types of Federal land that are at risk of wildland fire or insect and disease epidemics. The act helps rural communities, States, Tribes, and landowners restore healthy forest and rangeland conditions on State, Tribal, and private lands. It also:

  • Encourages biomass removal from public and private lands
  • Provides technical, educational, and financial assistance to improve water quality and address watershed issues on non-Federal lands
  • Authorizes large-scale silvicultural research
  • Authorizes acquisition of Healthy Forest Reserves on private land to promote recovery of threatened and endangered species, and improve biodiversity and carbon sequestration
  • Directs the establishment of monitoring and early warning systems for insect or disease outbreaks

Title I provides authorities for expedited vegetation treatments on certain types of NFS and BLM lands that are at risk of wildland fire; have experienced wind throw, blowdown, or ice-storm damage; are currently experiencing disease or insect epidemics; or are at imminent risk of such epidemics because of conditions on adjacent land. This title:

  • Provides expedited environmental analysis of HFRA projects

  • Provides administrative review before decisions are issued on proposed HFRA projects on NFS lands

  • Contains requirements governing the maintenance and restoration of old-growth forest stands when the USDA Forest Service and DOI BLM carry out HFRA projects in such stands

  • Requires HFRA projects on NFS and BLM land to maximize retention of larger trees in areas other than old-growth stands, consistent with the objective of restoring fire-resilient stands and protecting at-risk communities and Federal lands

  • Requires collaboration between Federal agencies and local communities, particularly when Community Wildfire Protection Plans are prepared

  • Requires using at least 50 percent of the dollars allocated to HFRA projects to protect communities at risk of wildland fire

  • Requires performance to be monitored when agencies conduct hazardous-fuel reduction projects and encourages multiparty monitoring that includes communities and other diverse stakeholders (including interested citizens and Tribes)

  • Encourages courts to expedite judicial review of legal challenges to HFRA projects

  • Directs courts that consider a request for an injunction on an HFRA-authorized project to balance the short- and long-term environmental effects of undertaking the project against the effects of taking no action

So it’s been 22 years and here we are with FOFA.

I am REALLY glad that Megafire Action did this analysis, as it’s very difficult for many of us to follow “remove section Xof HFRA and replace it with…”

Here’s the litigation section (remember Rich J. explained this to us in greater detail in a previous comment).

The Senate version updates standards for judicial review of fireshed management projects and limits injunctions to defined conditions. It codifies the existing balancing test for injunctions and removes the “proximate and substantial environmental harm” threshold included in the House version. It introduces separate four-part tests for preliminary and permanent injunctions and establishes clear criteria for when courts may vacate agency actions—explicitly considering wildfire risk and ecosystem health. It also extends the statute of limitations from 120 to 150 days, removes the requirement that plaintiffs must have participated in the agency comment process, and requires agencies to act on court remands within 180 days. In all, this represents a balanced compromise between preserving process and preventing obstruction of badly needed projects.

I wonder about “removes the requirement that plaintiffs must have participated in the agency comment process.”  I thought that was already a thing somewhere.   It seems like if  folks had concerns about a project they would want to participate so the agency would have a chance to do what they wanted. Maybe this has to do with increased use of CE’s, and maybe some groups would miss scoping? Would like to hear more about the rationale for this.

Here’s the NEPA xection: FYI Kelly Martin is on the Board of Megafire Action.

Under FOFA, forest management projects receiving up to a 10,000 acre CE must first be identified by a fireshed assessment. FOFA mandates that fireshed assessments comply with
applicable forest plans which are developed with community input, incorporate the best available science and traditional ecological knowledge from Indian Tribes, and allow for local government participation in their formulation. These added guardrails ensure that CEs will not be used for projects that harm our forests.
While sensitivities around changes to NEPA are justified, it is important to note that FOFA does not amend, alter, or rollback NEPA or the Endangered Species Act (ESA). Agencies must still adhere to all rules and regulations governing the use of categorical exclusions and CEs must only be used in appropriate areas and not used in areas where work is prohibited. It is also important to note that while the original draft eliminated acreage limitations for the utilization of categorical exclusions, the current version sets the acreage limitation to 10,000 acres. FOFA would not enable agencies to “stack” CEs any more than they are able to under the current 3,000 acre limitation.

To further understand the practitioner perspective on categorical exclusions, Megafire Action interviewed Kelly Martin, Ret. Chief of Fire and Aviation at Yosemite National Park, and Type 1 Incident Management Team member in Operations and Fire Behavior, who provided important insights on CEs:
“Categorical exclusions (CE) are a key tool for forest resilience and wildfire mitigation. Currently, there is an over-allocation of funding and human capital dedicated to
planning and revising existing NEPA Environmental Impact Statement (EIS) or Environmental Assessment (EA) documents sometimes 5 to 10 years in the making.
This favors what seems like endless and duplicative planning efforts compared to implementing beneficial actions on the ground that we know are based on solid science and research. CEs help us streamline the public review process and start putting meaningful projects on the ground faster to meet existential wildfire threats. Unfortunately, projects done under the current 3,000 acre CEs fall woefully short of what is needed to meet the ever increasing size of contemporary wildfires. Smaller CEs often don’t provide the buffer or resiliency needed to change conditions on the ground at a meaningful scale. In contrast, the value of a 10,000 acre CE is that you’re not just looking at small sections, you’re starting to look at the entire landscape and how it can withstand future challenges to watersheds, biodiversity, and key ecosystem services we deeply care about.

A common mindset around CEs is that they represent a rollback of environmental protections, but CEs are really about accelerating the implementation process for projects that have already been vetted and approved in existing land management plans backed by an EIS or EA. CEs are nothing new, they’ve been an important part of public engagement and meaningful land management actions for years. The CE reduces planning and analysis tiered to existing EISs and EAs and reduces the need for a redundant round of review for each specific project. This is not about returning to clear cut logging, going into sensitive areas, or removing mature growth old timber. We’re talking about targeting areas that are accessible, where intervention can make a meaningful difference to landscape resilience. While forestry in the past, particularly in the early 1900s, often led to negative outcomes, those earlier mistakes should not cloud the judgment of today’s forest management strategies, which are vastly more informed by modern science. We’re not going back to those days.”

The Senate version keeps the core of this provision while making a few tweaks to ensure that the CEs apply to fireshed management areas that are properly selected with the best science, and adds some new guardrails on the use of emergency authorities. The Senate version adds  riparian and wet meadow restoration and more detailed descriptions of the types of treatments intended, to further signal that clearcutting is not a desired management activity.”

The Megafire Analysis is comprehensive, so if you find any other topics of interest, please feel free to comment.  I just selected these because I heard that these were sticking points to some offices.

 

Legal Questions About Senate Fix Our Forests Act

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I took a look at what I think is the current draft of the bipartisan Senate FOFA bill, introduced by Curtis, Sheehy, Padilla, and Hickenlooper, while I have many questions abaout how it’s supposed to work, the section on litigation stuck out to me as needing some interpretation from our legal friends.

Questions: 1) How different is this from the current approach?
2) Do judges usually think plaintiffs can suffer “irreparable injury” from fuel treatment projects?
3) The “public interest” considerations includes the “likelihood that the fireshed management project will achieve the stated purpose of the fireshed management project”. Jon showed us yesterday that at least one judge seems to think that treatments may not achieve the purpose (or that BLM didn’t adequately address the scientific counter-arguments). So it seems like judges will have to weigh in on whether a project will achieve the stated purpose- but maybe that means the judge weighs in on whether the agency adequately wrote about whether it would achieve the stated purpose? Is the judge making a call on whether it will, or whether the documentation was adequate to determine whether it will, or both, or neither?
4) What is a vacatur, and how does it apply to fuels projects, and in what sense this would be a change?

Subtitle C—Litigation Reform
15 SEC. 121. COMMONSENSE LITIGATION REFORM.
16 (a) DEFINITIONS.—In this section:
17 (1) AGENCY DOCUMENT.—The term ‘‘agency
18 document’’, with respect to a fireshed management
19 project, means a record of decision, decision memorandum, environmental document, or programmatic
21 environmental document.
22 (2) COVERED AGENCY ACTION.—The term
23 ‘‘covered agency action’’ means—
24 (A) the establishment of a fireshed management project by an agency;
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1 (B) the application of a categorical exclusion to a fireshed management project;
3 (C) the preparation of any agency document for a fireshed management project; and
5 (D) any other agency action as part of a
6 fireshed management project.
7 (3) NEPA TERMS.—The terms ‘‘categorical exclusion’’, ‘‘environmental document’’, and ‘‘programmatic environmental document’’ have the meanings given those terms in section 111 of the National
11 Environmental Policy Act of 1969 (42 U.S.C.
12 4336e).
13 (b) LIMITATIONS ON JUDICIAL REVIEW.—
14 (1) LIMITATIONS ON INJUNCTIVE RELIEF.—
15 (A) TEMPORARY DELAY OF COVERED
16 AGENCY ACTION.—Notwithstanding any other
17 provision of law, in the case of a claim arising
18 under Federal law seeking judicial review of a
19 covered agency action, a court shall not issue a
20 preliminary injunction against such covered
21 agency action unless the court determines
22 that—
23 (i) subject to subparagraph (C), such
24 preliminary injunction is in the public interest;
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1 (ii) the balance of equities favors the
2 plaintiff;
3 (iii) the plaintiff is likely to succeed
4 on the merits; and
5 (iv) the plaintiff is likely to suffer irreparable injury in the absence of preliminary relief.
8 (B) PERMANENT LIMIT ON AGENCY ACTION.—Notwithstanding any other provision of
10 law, in the case of a claim arising under Federal law seeking judicial review of a covered
12 agency action, a court shall not issue a permanent injunction against such covered agency action, or an order to otherwise permanently limit
15 such covered agency action, unless a court determines that—
17 (i) subject to subparagraph (C), such
18 permanent injunction or order is in the
19 public interest;
20 (ii) the balance of equities favors the
21 plaintiff;
22 (iii) the plaintiff has suffered or will
23 suffer irreparable injury; and
24 (iv) no adequate remedy is available
25 at law.
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1 (C) PUBLIC INTEREST DETERMINATION.—
2 (i) IN GENERAL.—In determining
3 under subparagraphs (A) and (B) whether
4 a preliminary or permanent injunction
5 against, or other order with respect to, a
6 covered agency action is in the public interest, the considerations of the court shall
8 include—
9 (I) the purpose for which an 10 agency is undertaking the fireshed
11 management project relating to such
12 covered agency action;
13 (II) the likelihood that the
14 fireshed management project will
15 achieve the stated purpose of the
16 fireshed management project; and
17 (III) the short- and long-term effects of proceeding with the covered
19 agency action, as compared to delaying or limiting such covered agency
21 action, including the potential for significant increases in wildfire risk or
23 severity and significant threats to the
24 health of the ecosystem.
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1 (ii) WEIGHT OF PUBLIC INTEREST
2 FACTOR.—In determining whether to issue
3 any injunction or order under subpara4 graph (A) or (B), a court shall give signifi5 cant, but not necessarily dispositive, weight
6 to its consideration of whether such order
7 is in the public interest.
8 (2) REMAND.—
9 (A) IN GENERAL.—Notwithstanding any
10 other provision of law, in the case of a claim
11 arising under Federal law seeking judicial review of a covered agency action, if the court remands the matter to the agency, the court shall
14 remand with instructions to carry out, during
15 the 180-day period beginning on the date of
16 such remand, such additional actions as may be
17 necessary to redress any cognizable harm giving
18 rise to such claim.
19 (B) VACATUR.—
20 (i) IN GENERAL.—In remanding a
21 matter to an agency under subparagraph
22 (A), the court shall remand with vacatur
23 only if—
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1 (I) the seriousness of any deciencies in the covered agency action
3 weigh in favor of vacatur; and
4 (II) the court determines that
5 any disruptive consequences of
6 vacatur, including the short- and long term effects of vacating the covered
8 agency action or any part of such covered agency action, do not outweigh
10 the justification for vacatur.
11 (ii) CONSIDERATIONS.—In making the
12 determination described in clause (i)(II),
13 the court shall consider whether vacatur
14 would cause—
15 (I) any significant increases in
16 wildfire risk or severity, and
17 (II) any significant threats to the
18 health of the ecosystem.
19 (C) EFFECT OF REMAND ON AGENCY.—In
20 the case of a covered agency action subject to
21 remand without vacatur, or with partial
22 vacatur, pursuant to this paragraph, the agency
23 may—
24 (i) continue to carry out such covered
25 agency action, or such parts of the covered
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1 agency action as are not vacated, to the extent that doing so does not interfere with
3 any additional actions required pursuant to
4 subparagraph (A); and
5 (ii) use any format, as appropriate, to
6 correct an agency document (including a
7 supplemental environmental document,
8 memorandum, or errata sheet), provided
9 that such format is appropriate to the nature of the deficiency.
11 (3) PRESERVATION OF AUTHORITY.—Nothing
12 in this section alters, limits, or displaces the authority of a court to review a covered agency action
14 under section 706(2) of title 5, United States Code.
15 (c) LIMITATIONS ON CLAIMS.—Notwithstanding any
16 other provision of law, a claim arising under Federal law
17 seeking judicial review of a covered agency action shall be
18 barred unless—
19 (1) with respect to an agency document or the
20 application of a categorical exclusion noticed in the
21 Federal Register, such claim is filed not later than
22 150 days after the date of publication of a notice in
23 the Federal Register of agency intent to carry out
24 the fireshed management project relating to such
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ARP25243 F9N S.L.C.
1 covered agency document or application, unless a
2 shorter period is specified in such Federal law; or
3 (2) in the case of an agency document or the
4 application of a categorical exclusion not described
5 in paragraph (1), if such agency document or application is otherwise published or noticed, such claim
7 is filed not later than 150 days after the date that
8 is the earlier of—
9 (A) the date on which such agency document or application is published; and
11 (B) the date on which such agency document or application is noticed.

*******

For Sale – half million acres of federal lands

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La Citta Vita, Flickr

The ball is rolling on selling federal lands for housing with the creation of a task force that would identify federal land that would be suitable for housing.  The task force would be run by the Departments of the Interior and Housing and Urban Development.

“The aim of Trump’s new task force is to identify the land parcels suitable for building. It will then transfer or lease them out to public-housing authorities, nonprofits or local governments to develop homes.  The land might occasionally be sold to private developers, according to a HUD representative.  The federal agencies would determine that on a “case-by-case basis” in coordination with the local government.”

Really?  One might suspect this money-grubbing Administration would sell the most valuable land and to the highest bidder.  Especially if this is going to be used to finance its sovereign wealth fund.

No mention here of whether the Forest Service or national forest lands would be involved – it could be limited to lands not otherwise “designated,” including national forests.  The other interesting thing is this:

“Developing even 512,000 acres of the Bureau of Land Management’s lots could yield between three million and four million new homes across western states such as Nevada, Utah, California and Arizona, according to a preliminary analysis by the American Enterprise Institute, a Washington, D.C., center-right think tank.”

It’s hard to picture where those acres would not be, given that …

“Only a small portion of U.S. government-owned land is near cities with housing shortages. About 47 million acres, or 7.3% of all federal land, falls within metropolitan areas that need more homes, according to a Wall Street Journal analysis of government land maps and housing-shortage data from the National Association of Realtors.

In a few cases, local housing shortages overlap with an abundance of federal land in the area, such as Salt Lake City and Las Vegas.  This policy could make a big difference for those housing markets.”

But what about Seattle, Portland, Spokane and … Missoula.  The prices in many northwestern national forest-adjacent cities (and towns) indicate a housing shortage in these places.  This article says the Secretaries want “affordable” housing, but it’s hard to imagine what kind of constraints that would put on the process – anywhere that has a housing shortage has an affordable housing shortage, and I can’t imagine this federal government adding requirements to local real estate deals to ensure housing affordability.  Given the lack of guardrails being recognized by this Administration, I can  imagine that any community that is interested could be coming into some new real estate.

“HUD will pinpoint where housing needs are most pressing,” and Interior “will identify locations that can support homes while carefully considering environmental impact and land-use restrictions,” the agencies’ secretaries wrote in the Journal’s opinion piece.

So they say.  Will they consider the effects on national forest management of expanding the WUI?  Land management plans should have identified lands suitable for disposal (or maybe a process for doing that) – would this matter?  (Maybe someone with a WSJ subscription can pry out some more details about what these Secretaries have in mind.)

Environmental executive orders from T2

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I happened to pick up this post from LinkedIn that looks like it netted many of Trump’s recent executive orders that are most likely to affect federal lands.

A lot of executive actions came out of the White House yesterday and thought I would unpack ten of many radical new policies that you (or the media) might not have noticed yet.

(A reminder that Executive Orders and Presidential Memoranda are policy and priority statements and directives to staff from a president that offer interpretation within the limits set by all the laws of the country… all Presidents use them) https://lnkd.in/eTxhxheF

These orders are found here – if you want a document/section reference for something let me know:
https://lnkd.in/euDE8tvR

1. 🫎 Requires the ‘god squad’ under the Endangered Species Act to meet every 3 months and directs the Secretary of Interior to figure out procedures that would allow the committee to complete it’s reviews of every submission within 140 days; this authority has very rarely been used within the last 50 years, but could be used to allow big infrastructure projects to have no, fewer, or different requirements to avoid, minimize, or offset impacts on endangered wildlife and plants.
2. 🌊 Directed the Army Corps to use general permits and emergency procedures under the Clean Water Act far more often and the same for emergency procedures for permitting (or consulting) on projects under the Endangered Species Act.
3. Weirdly revoked President Carter’s executive order on NEPA that told agencies to make environmental impact statements shorter, clearer and more useful to the public; I assume this is because it also gave CEQ direction to issue regulations under NEPA.
4. 🌲 Rescinded the executive order protecting ancient forests across US National Forests and that created a national goal to reforest areas in the US where trees have been lost.
5. 🌵 Rescinded direction for US agencies to expand international work and cooperation to fight deforestation.
6. Rescinded the order that directed the Office of Management and Budget to provide guidance on ecosystem service valuation
7. Rescinded direction to federal agencies to report and act on ways to expand the use of nature-based solutions.
8. Required all agencies to develop action plans to change or eliminate all regulations, orders, guidance, policies, settlements or other actions that hinder or slow down US energy production (except offshore wind energy permitting and leasing which is suspended completely and agencies are directed to add policies to slow down)
9. Suspended about a dozen policies or decisions related to energy production and roads in Alaska.
10. Makes thousands of “policy-influencing” career federal jobs into a new category of employment that is subject to different performance requirements and dismissal if they fail to “faithfully implement” policies of the current president.

Latest Activities of Senate Energy and Natural Resources Committee on Wildfires, Forests, Ski Fees and Grazing

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We really need one or more volunteers to take a look at current bills, this time in the Senate.
So thank you to a TSW reader for the E&E News story on this.

“The Senate Energy and Natural Resources Committee approved 74 bills during a markup Tuesday, including legislation that could generate billions of dollars to address worsening coastal erosion.
The committee also cleared a slew of wildfire, mineral, public land and livestock grazing bills without much debate or discussion.”

Here’s a link to these, there’s also a video of the business meeting. I think you would have to know what the original bill said to understand what the amendments are doing. I know that there are many people in DC and elsewhere paid to keep track of these things, and have probably written this up. Sharing your perceptions with the public via TSW I think would be a good thing. In fact, I bet government agencies do this analysis, and I could FOIA it, but a leak would be quicker.

Here’s the E&E News summary of forest and wildfire bills.

Among the bills approved en bloc were a handful of wildfire and forest management measures. Those included an amended version of S. 2867, by Barrasso, which would set targets for forest thinning and prescribed fire. Late changes to Barrasso’s bill removed a section on workforce training for loggers and on putting limitations on the Biden administration’s definitions of mature and old growth trees in national forests. The administration has finalized those definitions since the bill was introduced.

Other wildfire bills included S. 1764, from Sen. Catherine Cortez-Masto (D-Nev.), to improve wildfire planning and suppression grant programs and create post-wildfire recovery programs. An amended version of the bill dropped a provision calling for dedicated accounts for wildfire, a spokesperson for the committee said.
Lawmakers approved S. 2132, from Lee, for a pilot program that would establish standards for forest density. The Utah Republican said forests in fire-prone areas are too dense.
The committee advanced legislation by Sen. Ron Wyden (D-Ore.), the “National Prescribed Fire Act,” S. 4424, to encourage more use of controlled burns on federal lands.
Manchin’s legislation, S. 2991, to encourage greater revegetation on federal lands, including abandoned mine sites, also passed easily.

Some of these below sound interesting from our perspective. Many seem to be about boundary adjustments, putting land into the National Park System, and naming visitor centers after themselves, but others may be more interesting and/or controversial. These were agreed to en bloc by voice vote.

Agenda Item 1: S. 254, a bill to amend the Omnibus Parks and Public Lands Management Act of 1996 to provide for the establishment of a Ski Area Fee Retention Account, and for other purposes. (Mr. Bennet).

Agenda Item 7: S. 1553, a bill to amend the Federal Land Policy and Management Act of 1976 to improve the management of grazing permits and leases, and for other purposes (Mr. Barrasso), with an amendment in the nature of a substitute (Joint Staff-4, as modified (FLO24827)).

Agenda Item 8: S. 1764, a bill to improve Federal activities relating to wildfires, and for other purposes (Ms. Cortez Masto), with an amendment in the nature of a substitute (Manchin-5 (RYA24540)).

Agenda Item 9: S. 2132, a bill to require the Secretary of Agriculture to establish a pilot program for the establishment and use of a pre-fire-suppression stand density index, and for other purposes (Mr. Lee), with an amendment in the nature of a substitute (Lee-6 (RYA24537)).

Agenda Item 10: S. 2151, a bill to amend the Southwest Forest Health and Wildfire Prevention Act of 2004 to require the establishment of an additional Institute under that Act. (Mr. Lee).

Agenda Item 11: S. 2156, a bill to amend the John D. Dingell, Jr. Conservation, Management, and Recreation Act to authorize additional entities to be eligible to complete the maintenance work on Bolts Ditch and the Bolts Ditch Headgate within the Holy Cross Wilderness, Colorado. (Mr. Bennet).

Agenda Item 13: S. 2169, a bill to authorize the Secretary of the Interior to carry out watershed pilots, and for other purposes (Mr. Wyden), with an amendment in the nature of a substitute (Wyden-12 (FLO24732)) and an amendment to the title (Wyden-11 (FLO24597)).
( I wonder what’s keeping the Sec of Int from carrying out watershed pilots?)

Agenda Item 19: S. 2867, a bill to address the forest health crisis on the National Forest System and public lands, and for other purposes (Mr. Barrasso), with an amendment in the nature of a substitute (Barrasso-17, as modified (FLO24825)).

Agenda Item 21: S. 2991, a bill to improve revegetation and carbon sequestration activities in the United States, and for other purposes (Mr. Manchin), with an amendment in the nature of a substitute (Manchin-18, as modified (RYA24592)).

Agenda Item 22: S. 3123, a bill to provide for the standardization, consolidation, and publication of data relating to public outdoor recreational use of Federal waterways among Federal land and water management agencies, and for other purposes (Mr. Barrasso), with an amendment in the nature of a substitute (Barrasso-19 (FLO24677)).

(Is other recreation data standardized, consolidated and published?)

Agenda Item 34: S. 3631, a bill to require reports on critical mineral and rare earth element resources around the world and a strategy for the development of advanced mining, refining, separation, and processing technologies (Mr. Cornyn), with an amendment in the nature of a substitute (King-29 (ROS24F44)).

Agenda Items 35: S. 3790, a bill to make additional Federal public land available for selection under the Alaska Native Vietnam era veterans land allotment program, and for other purposes (Mr. Sullivan), with an amendment in the nature of a substitute (Murkowski- 66 (FLO24876)).

Agenda Item 36: S. 3985, a bill to a bill to amend the Colorado Wilderness Act of 1993 to add certain land to the Sarvis Creek Wilderness, and for other purposes. (Mr. Hickenlooper).

Agenda Item 51: S. 4424, a bill to direct the Secretary of the Interior and the Secretary of Agriculture to encourage and expand the use of prescribed fire on land managed by the Department of the Interior or the Forest Service, with an emphasis on units of the National Forest System in the western United States, to acknowledge and support the long-standing use of cultural burning by Tribes and Indigenous practitioners, and for other purposes (Mr. Wyden), with an amendment in the nature of a substitute (Manchin-44, as modified (RYA24596)).

Agenda Item 54: S. 4451, a bill to require the Secretary of the Interior to enter into an agreement with the National Academy of Sciences to carry out a study on reservation systems for Federal land (Mr. Padilla), with an amendment in the nature of a substitute (Joint Staff-46, as modified (FLO24776).

Agenda Item 55: S. 4454, a bill to provide for the establishment of an Operational Flexibility Grazing Management Program on land managed by the Bureau of Land Management, and for other purposes (Mr. Barrasso), with an amendment in the nature of a substitute (Joint Staff-47, as modified (FLO24850)).

Agenda Item 73: S. 5125, a bill to provide for certain improvements to the housing and workforce programs of Federal land management agencies, and for other purposes (Mr. Barrasso), with an amendment in the nature of a substitute (Barrasso-62, as modified (FLO24845)).

Agenda Item 78: H.R. 5443, an Act to establish a policy regarding appraisal and valuation services for real property for a transaction over which the Secretary of the Interior has jurisdiction, and for other purposes. (Rep. Lee).

Agenda items agreed to by roll call vote

Agenda Item 25: S. 3346, a bill to amend the Wild and Scenic Rivers Act to designate certain streams in the greater Yellowstone ecosystem and Smith River system in the State of Montana as components of the Wild and Scenic Rivers System, and for other purposes (Mr. Tester), with an amendment in the nature of a substitute (Manchin-22 (FLO24729)).
Agreed to by roll call vote (10-9)

Agenda Item 31: S. 3593, a bill to provide for economic development and conservation in Washoe County, Nevada, and for other purposes (Ms. Rosen), with an amendment in the nature of a substitute (Manchin-27, as modified (FLO24864)). Agreed to by roll call vote (10-9)

Agenda Item 53: S. 4432, a bill to allow certain Federal minerals to be mined consistent with the Bull Mountains Mining Plan Modification (Mr. Daines), with an amendment in the nature of a substitute (Daines-45 (NEW24792)). Agreed to by roll call vote (12-7)

Agenda Item 56: S. 4457, a bill to provide for conservation and economic development in the State of Nevada, and for other purposes (Ms. Cortez Masto), with an amendment in the nature of a substitute (Manchin-48, as modified (FLO24863)). Agreed to by roll call vote (13-6)

Agenda Item 77: H.R. 4984, an Act to direct the Secretary of the Interior to transfer administrative jurisdiction over the Robert F. Kennedy Memorial Stadium Campus to the District of Columbia so that the District may use the Campus for purposes including residential and commercial development, and for other purposes. (Rep. Comer). Agreed to by roll call vote (17-2)

Fix Our Forests Act: Tracking Accurate Fuel Treatment Numbers and Increasing Transparency

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This has been a sort of Holy Grail since way before I retired.

Now, we know that there are many ways of calculating, and in fact, thinking about wildfire risk, including many ways already researched by folks at the Rocky Mountain Research Station and elsewhere. Maybe the bill should pick one or make sure that both Secs pick the same one?

Also fuel treatment effectiveness, in fact many bucks were sent to CSU and NAU for fuel treatment effectiveness monitoring, which perhaps has devolved into this ReShape effort.. Plus there was the FS’s own Region 6 FTEM that we covered here and seems to have stopped.   I’d sure like to hear the history of all this.

Again, WUI, many different definitions.  Perhaps the bill should pick one?

What do you think of this approach?

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SEC. 302. Accurate hazardous fuels reduction reports.

(a) Inclusion of hazardous fuels reduction report in materials submitted in support of the President’s budget.—

(1) IN GENERAL.—Beginning with the first fiscal year that begins after the date of enactment of this Act, and each fiscal year thereafter, the Secretary concerned shall include in the materials submitted to Congress in support of the President’s budget pursuant to section 1105 of title 31, United States Code, a report on the number of acres of Federal land on which the Secretary concerned carried out hazardous fuels reduction activities during the preceding fiscal year.

(2) REQUIREMENTS.—For purposes of the report required under paragraph (1), the Secretary concerned shall—

(A) in determining the number of acres of Federal land on which the Secretary concerned carried out hazardous fuels reduction activities during the period covered by the report—

(i) record acres of Federal land on which hazardous fuels reduction activities were completed during such period; and

(ii) record each acre described in clause (i) once in the report, regardless of whether multiple hazardous fuels reduction activities were carried out on such acre during such period; and

(B) with respect to the acres of Federal land recorded in the report, include information on—

(i) which such acres are located in the wildland-urban interface;

(ii) the level of wildfire risk (high, moderate, or low) on the first and last day of the period covered by the report;

(iii) the types of hazardous fuels activities completed for such acres, delineating between whether such activities were conducted—

(I) in a wildfire managed for resource benefits; or

(II) through a planned project;

(iv) the cost per acre of hazardous fuels activities carried out during the period covered by the report;

(v) the region or system unit in which the acres are located; and

(vi) the effectiveness of the hazardous fuels reduction activities on reducing the risk of wildfire.

(3) TRANSPARENCY.—The Secretary concerned shall make each report submitted under paragraph (1) publicly available on the websites of the Department of Agriculture and the Department of the Interior, as applicable.

(b) Accurate data collection.—

(1) IN GENERAL.—Not later than 90 days after the date of enactment of this Act, the Secretary concerned shall implement standardized procedures for tracking data related to hazardous fuels reduction activities carried out by the Secretary concerned.

(2) ELEMENTS.—The standardized procedures required under paragraph (1) shall include—

(A) regular, standardized data reviews of the accuracy and timely input of data used to track hazardous fuels reduction activities;

(B) verification methods that validate whether such data accurately correlates to the hazardous fuels reduction activities carried out by the Secretary concerned;

(C) an analysis of the short- and long-term effectiveness of the hazardous fuels reduction activities on reducing the risk of wildfire; and

(D) for hazardous fuels reduction activities that occur partially within the wildland-urban interface, methods to distinguish which acres are located within the wildland-urban interface and which acres are located outside the wildland-urban interface.

(3) REPORT.—Not later than 2 weeks after implementing the standardized procedures required under paragraph (1), the Secretary concerned shall submit to Congress a report that describes—

(A) such standardized procedures; and

(B) program and policy recommendations to Congress to address any limitations in tracking data related to hazardous fuels reduction activities under this subsection.

Law Concepts for the Non-Lawyer: Rich J. on Preliminary Injunction Factors and the Balance of Equities

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A big thank you to Rich J. for giving us not only an explanation of the factors involved in preliminary injunctions, but also some legal history on the concept of “the balance of equities.”
The background of this discussion was the litigation reform currently in the Fix our Forests Act. Rich J wrote:

With respect to section 121(a),

To obtain a preliminary injunction, a plaintiff must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).

The 9th Circuit at one time (and perhaps it still does this) would weigh all four factors, and if factors 2-4 strongly favored an injunction, a district court might issue one even if the likelihood of success on the merits was a close question. Section 121(a) would prevent courts from using that sort of overall balancing test in cases involving covered agency actions.

In theory this would save judicial time since the judge would only need to look at one factor. But if the merits question is a difficult one, this language would force a judge to spend more time analyzing it. I would guess, from a judicial resources standpoint, this language would be a wash. Indeed, in circuits outside the 9th, it might have little effect since I believe the other circuits used the overall balancing approach less (if at all).

With respect to section 121(b), language like this has appeared in various bills since (I think) the 1990s. I think it stems from proposed logging projects that would have adversely affected spotted owl habitat (in the short term) but (the agency argued) protect owl habitat from future fires (in the long term). Courts were not generally sympathetic to this argument, considering the long-term argument to be too speculative. Section 121(b) would force judges to take the long-term argument more seriously, although I agree that the new language would not itself dictate a particular outcome.

(I’m being deliberately vague using the the term “the agency” – I don’t remember if this issue first arose with FS, BLM, or both. It’s also possible that the owl originally at issue was the CASPO – so take all of this with salt!)

My additional question was “what does it mean to “balance equities”?

“Balance of equities” can indeed mean a variety of things!

So there is no fixed definition. The term “equity” is a vestige of English common law. Back in the medieval day most suits between private parties (think feuding nobles or merchants) were for money damages – these suits were termed to be suits “in law.” But not every private dispute can be solved with money damages.

For example, if Duke of Blowhard has occupied Earl of Windbag’s pasture, money damages don’t remedy the Earl’s harm – he doesn’t need the money, he needs that valley to graze his sheep. So the Earl would bring a suit “in equity” – a suit that seeks an injunction to force the Duke off the land claimed by the Earl. The court would then evaluate the facts and circumstances in a fairly free-form way and craft an order that could be a complete wiin for either party or something in between.

Judges evolved this “equity” idea slowly – in the middle ages documents (like land titles) were notoriously forgeable and violence was always near the surface. Balancing the interests of the Duke and the Earl was the best way for the judge to ensure that he would live to hear the next case (and not issue a ruling that would inadvertently disturb the King’s peace).

This idea – that two opposing litigants often both have a point – has survived to the present day as the “balance of equities” test. It is perhaps better characterized (and often is) as “balance of harms.” Given that, in order to obtain an injunction a plaintiff must already establish that it will suffer “irreperable harm,” the “balance of harms” test then requires the court to look at the injury to the government if the injunction is issued. But, as you suggest, this evaluation of harms is often at least somewhat subjective.

Here are a couple of cases illustrating the balance of equities.

https://casetext.com/case/earth-island-inst-v-muldoon-5

https://casetext.com/case/envtl-prot-info-ctr-v-carlson-1

In both cases, environmental plaintiffs establish that failure to issue an injunction against a veg management project will result in irreperable harm. (In logging cases, this isn’t hard to achieve – a tree, once made horizontal, cannot be made vertical again). But in the first case, the court holds that the harm of issuing an injunction (delaying a Park Service project that would make future firefighters in the area safer) clearly outweighed the recrational harm suffered by the plaintiffs.

In the second case, the court strikes the opposite balance. This is probably because the court also held that the Forest Service had attempted to use an inapplicable CE for the project at issue. The court seemed to believe that the Forest Service could well have achieved its stated safety aims with a smaller project that would have fit within the CE.

And re: the long-term issue, it’s not that courts don’t believe that fire will happen, but they (or at least those that are skeptical) do not think the relevant administrative record establishes the likelihood that an owl-habitat-destroying fire will occur in the project area. This is a special case of the more general difficulty the agencies have had in establishing that fuel treatment projects are cost-beneficial. I suspect (though cannot document) that courts will gradually move at least somewhat away from this position as large and costly fires continue to become more prominent in general public discourse.

Fix Our Forests V. Power Line Maintenance and CE

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Some of you may remember the Environmental Analysis and Decisionmaking effort the FS conducted. At our Region 2 session, the power folks were concerned that if they had a power line that went through numerous Districts, they had to get approval separately and wondered if there were an easier way (say, a giant EIS). This seems particularly important as power lines (perhaps less so for transmission and more so for distribution, still..) can start wildfires, leading to litigation, possible bankruptcy and increasing charges to customers, let alone impacts of the wildfires themselves. Then there are the costs and health impacts of turning off power to communities in high winds.

Different sources have different estimates of how many transmission lines need to be replaced, e.g.

Over the next three decades, we estimate that upward of a hundred and forty thousand miles of transmission lines will come due for replacement. To simply upgrade this infrastructure and maintain the status quo would require an investment of more than seven hundred billion dollars, by our calculations.

Different sources have different estimates for how much new transmission is required for solar and wind buildout (and of course nuclear and geothermal might need more as well, depending on where they are built.)
According to this article NREL says

According to NREL’s 100% clean electricity study, these high load growth and high clean electricity futures would require building 91,000 miles of new high voltage interregional transmission lines by 2035. This appears unattainable when it takes 10 years on average to move a transmission line from conception to operation, and only 386 miles of high voltage transmission were built in 2021. The projects required are not even in the pipeline — the Needs Study says all regions are behind on utility planning for even the moderate/high scenarios, let alone the high/high scenarios.

Apparently the kind of growth desired is not happening, but I think given current uncertainties, transmission and distribution lines are very important.; hence their maintenance is very important.  It appears the the Fix our Forests Act tries to make maintenance easier.   It also says no new permanent roads. Does anyone think that this is not a good idea? Also I wonder if this CE should apply to BLM, NPS, FWS and DOD as well?  I know the new CEQ regs allow agencies to adopt others’ CEs but there seems to be work involved that may not be necessary. See these examples, DOI adopts FS and Navy’s CEs, FS adopts USGS CE. It doesn’t look like a great deal of work.. but why not obviate it?

 

 

SEC. 203. Vegetation management, facility inspection, and operation and maintenance relating to electric transmission and distribution facility rights-of-way.
(a) Hazard trees within 150 feet of electric power line.—Section 512(a)(1)(B)(ii) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1772(a)(1)(B)(ii)) is amended by striking “10” and inserting “150”.

(b) Consultation with private landowners.—Section 512(c)(3)(E) of such Act (43 U.S.C. 1772(c)(3)(E)) is amended—

(1) in clause (i), by striking “and” at the end;

(2) in clause (ii), by striking the period and inserting “; and”; and

(3) by adding at the end the following:

“(iii) consulting with a private landowner with respect to any hazard trees identified for removal from land owned by the private landowner.”.

(c) Review and approval process.—Section 512(c)(4)(A)(iv) of such Act (43 U.S.C. 1772(c)(4)(A)(iv)) is amended to read as follows:

“(iv) ensures that—

“(I) a plan submitted without a modification under clause (iii) shall be automatically approved 120 days after being submitted; and

“(II) with respect to a plan submitted with a modification under clause (iii), if not approved within 120 days after being submitted, the Secretary concerned shall develop and submit a letter to the owner and operator describing—

“(aa) a detailed timeline (to conclude within 165 days after the submission of the plan) for completing review of the plan;

“(bb) any identified deficiencies with the plan and specific opportunities for the owner and operator to address such deficiencies; and

“(cc) any other relevant information, as determined by the Secretary concerned.”.

SEC. 204. Categorical exclusion for electric utility lines rights-of-way.
(a) Categorical exclusion established.—Forest management activities described in subsection (b) are a category of activities hereby designated as being categorically excluded from the preparation of an environmental assessment or an environmental impact statement under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).

(b) Forest management activities designated for categorical exclusion.—The forest management activities designated under subsection (a) for a categorical exclusion are—

(1) the development and approval of a vegetation management, facility inspection, and operation and maintenance plan submitted under section 512(c)(1) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1772(c)(1)) by the Secretary concerned; and

(2) the implementation of routine activities conducted under the plan referred to in paragraph (1).

(c) Availability of categorical exclusion.—On and after the date of enactment of this Act, the Secretary concerned may use the categorical exclusion established under subsection (a) in accordance with this section.

(d) Exclusion of certain areas from categorical exclusion.—The categorical exclusion established under subsection (a) shall not apply to any forest management activity conducted—

(1) in a component of the National Wilderness Preservation System; or

(2) on National Forest System lands on which the removal of vegetation is restricted or prohibited by an Act of Congress.

(e) Permanent roads.—

(1) PROHIBITION ON ESTABLISHMENT.—A forest management activity designated under subsection (b) shall not include the establishment of a permanent road.

(2) EXISTING ROADS.—The Secretary concerned may carry out necessary maintenance and repair on an existing permanent road for the purposes of conducting a forest management activity designated under subsection (b).

(3) TEMPORARY ROADS.—The Secretary concerned shall decommission any temporary road constructed for carrying out a forest management activity designated under subsection (b) not later than the date that is 3 years after the date on which the forest management activity is completed.

(f) Applicable laws.—Clauses (iii) and (iv) of section 106(a)(3) shall apply to forest management activities designated under subsection (b).

Fix Our Forests IV. Title II: Protecting Communities in the Wildland-Urban Interface

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It wasn’t until I got to this section that I put some of the pieces together.

There are actually three pieces with three different sets of players.
I. Fireshed Center
Who: Every Agency Except EPA
Purpose: Predicting fire and smoke and informing people on the ground. Not clear how differing views on modeling would be incorporated, or exactly what “coordination” means.

Odd thing: streamline procurement processes and cybersecurity systems related to addressing wildland fire and smoke;
Could be interpreted: ease giving funds to our friends. Is cybersecurity a problem? Seems like arsonists are..

This strikes me as less of a traditional model of useful science (talk to users and develop appropriate) than “we’ll develop it without you and tell you you’re unscientific if you don’t use it.”
If you were on the Wildfire Commission, I’d be interested in whether this was noted or discussed in any way.

II. Fireshed Assessments

Who: Reps of States, Feds and Tribes and local governments if they ask.
Purpose: Figuring out what makes, for lack of a better word, a cohesive strategy for a given fireshed (what should be done where).

Here’s the info they’re using for fireshed assessments:

(A) MEMORANDUMS OF UNDERSTANDING.—In carrying out a fireshed assessment under this subsection, the Secretary concerned may enter into memorandums of understanding with other Federal agencies or departments, States, Indian Tribes, private entities, or research or educational institutions to improve, with respect to such assessment, the use and integration of—

(i) advanced remote sensing and geospatial technologies;

(ii) statistical modeling and analysis; or

(iii) any other technology or combination of technologies and analyses that the Secretary concerned determines will benefit the quality of information of such an assessment.

(B) BEST AVAILABLE SCIENCE.—In using the best available science for the fireshed assessments completed under subsection (a)(1), the Secretary concerned and Governor shall, to the maximum extent practicable, incorporate—

(i) traditional ecological knowledge from Indian Tribes;

(ii) data from State forest action plans and State wildfire risk assessments;

(iii) data from the Fireshed Registry maintained under section 103; and

(iv) data from other Federal, State, Tribal, and local governments or agencies.

What they’re saying is that the Fireshed Centers going to put a great deal of $ into developing a variety of tools, some of which won’t be online in time to help with Fireshed Assessments.
What’s also interesting to me is what role agencies like DOD and DHS have in this, which seems to be none. So why are they there in the Fireshed Center? Maybe it makes some sense to coherently separate new suppression technologies from more generalized “we think it would be helpful” modeling.

And so now we come to..
III. Community wildfire risk reduction program.

a) Establishment.—Not later than 30 days after the date of enactment of this Act, the Secretaries shall jointly establish an interagency program to be known as the “Community Wildfire Risk Reduction Program” that shall consist of at least one representative from each of the following:

(1) The Office of Wildland Fire of the Department of the Interior.

(2) The National Park Service.

(3) The Bureau of Land Management.

(4) The United States Fish and Wildlife Service.

(5) The Bureau of Indian Affairs.

(6) The Forest Service.

(7) The Federal Emergency Management Agency.

(8) The United States Fire Administration.

(9) The National Institute of Standards and Technology.

OK, so this time they rounded up the usual federal agency suspects..

(b) Purpose.—The purpose of the program established under subsection (a) is to support interagency coordination in reducing the risk of, and the damages resulting from, wildfires in communities (including tribal communities) in the wildland-urban interface through—

(1) advancing research and science in wildfire resilience and land management, including support for non-Federal research partnerships;

(2) supporting adoption by Indian Tribes and local governmental entities of fire-resistant building methods, codes, and standards;

(3) supporting efforts by Indian Tribes or local governmental entities to address the effects of wildland fire on such communities, including property damages, air quality, and water quality;

(4) encouraging public-private partnerships to conduct hazardous fuels management activities in the wildland-urban interface;

Whoa.. I think we have plenty of people funded by current agencies who study wildfire resilience and land management. What is the role of these agencies in “supporting adoption of fire-resistant building codes, etc?” Is that technical assistance? What work is it to “encourage public-private partnerships?” Doesn’t doing WUI fuel treatment overlap a bit with Fireshed Assessments?

(5) providing technical and financial assistance targeted towards communities, including tribal communities, through streamlined and unified technical assistance and grant management mechanisms, including the portal and grant application established under subsection (c), to—

(A) encourage critical risk reduction measures on private property with high wildfire risk exposure in such communities; and

(B) mitigate costs for and improve capacity among such communities.

(c) Portal and uniform grant application.—

(1) IN GENERAL.—As part of the program established under subsection (a), the Secretaries and the Administrator of the Federal Emergency Management Agency shall establish a portal through which a person may submit a single, uniform application for any of the following:

(A) A community wildfire defense grant under section 40803(f) of the Infrastructure Investment and Jobs Act (16 U.S.C. 6592(f)).

(B) An emergency management performance grant under section 662 of the Post-Katrina Emergency Management Reform Act of 2006 (6 U.S.C. 761).

(C) A grant under section 33 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2229).

(D) A grant under section 34 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2229a).

(E) Financial or technical assistance or a grant under sections 203, 205, 404, 406, or 420 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133, 5135, 5170c, 5172, 5187).

(2) SIMPLIFICATION OF APPLICATION.—In establishing the portal and application under paragraph (1), the Secretaries and the Administrator shall seek to reduce the complexity and length of the application process for the grants described in paragraph (1).

(3) TECHNICAL ASSISTANCE.—The Secretaries shall provide technical assistance to communities or persons seeking to apply for financial assistance through the portal using the application established under paragraph (1).

(d) Sunset.—The program established under this section shall terminate on the date that is 7 years after the date of enactment of this Act.

It seems like we might not need Community Navigators for specific communities if they did this simplification and standardization. Honestly, it’s not clear to me why Congress has to tell them to do this, they should probably have thought of it on their own. Again, this could use a formal evaluation.

SEC. 202. Community wildfire defense research program.
(a) In general.—The Secretaries shall, acting jointly, expand the Joint Fire Science Program to include a performance-driven research and development program known as the “Community Wildfire Defense Research Program” for the purpose of testing and advancing innovative designs to create or improve the wildfire-resistance of structures and communities.

(b) Program priorities.—In carrying out the program established under subsection (a), the Secretaries shall evaluate opportunities to create wildfire-resistant structures and communities through—

(1) different affordable building materials, including mass timber;

(2) home hardening, including policies to incentivize and incorporate defensible space;

(3) subdivision design and other land use planning and design;

(4) landscape architecture; and

(5) other wildfire-resistant designs, as determined by the Secretary.

(c) Community wildfire defense innovation prize.—

(1) IN GENERAL.—In carrying out the program established under subsection (a), the Secretaries shall carry out a competition through which a person may submit to the Secretaries innovative designs for the creation or improvement of an ignition-resistant structure or fire-adapted communities.

(2) PRIZE.—Subject to the availability of appropriations made in advance for such purpose, the Secretaries may award a prize under the competition described in paragraph (1), based on criteria established by the Secretaries and in accordance with paragraph (3).

(3) SCALE.—In awarding a prize under paragraph (2), the Secretaries shall prioritize for an award designs with the most potential to scale to existing infrastructure.

(d) Sunset.—The program established under subsection (a) shall terminate on the date that is 7 years after the date of enactment of this Act.

This seems like a great idea and to run it through JFSP.
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So for me, there are great concrete ideas here.. simplify, streamline, do research via JFSP, and there are fuzzier, with some potential overlaps with Fireshed Assessments. Then there is a potential agency clusterf with tasks of “advancing, supporting and encouraging.” Here’s my thing, if we can’t imagine what it would be like to put this in a person’s job description in terms of specific accomplishments, maybe it’s not ready for prime time.

I know that a way for R’s and D’s to come together is to hand out funding to preferred folks (pork-swapping) but I, perhaps naively, think that there are other things we could agree on that wouldn’t add unnecessarily to the deficit.

Fix Our Forests III. Litigation Reform

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Help from the lawyers at TSW would be greatly appreciated for this section.

SEC. 121. Commonsense litigation reform.
(a) In general.—A court shall not enjoin a covered agency action if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

Maybe our legal friends can help us understand here, 1) what, if any criteria do judges use now? 2) Does this make extra work for judges (would they have to come to a pre-decision and do more work?)

(b) Balancing short-and long-term effects of covered agency action in considering injunctive relief.—As part of its weighing the equities while considering any request for an injunction that applies to a covered agency action, the court reviewing such action shall balance the impact to the ecosystem likely affected by such action of—

(1) the short- and long-term effects of undertaking such action; against

(2) the short- and long-term effects of not undertaking such action.

I don’t know how this will help.. some judges will think cutting trees is bad and wildfires won’t happen while the project is enjoined, and others think the other way. Judges, who are lawyers, tend to write really well, and will be describe quite eloquently how their decisions fit this requirement. Plus they make take some separation of powers umbrage, which I don’t think will help. Judges are, after all, necessarily human.

(c) Limitations on judicial review.—

(1) IN GENERAL.—Notwithstanding any other provision of law (except this section), in the case of a claim arising under Federal law seeking judicial review of a covered agency action—

(A) a court shall not hold unlawful, set aside, or otherwise limit, delay, stay, vacate, or enjoin such agency action unless the court determines that—

(i) such action poses or will pose a risk of a proximate and substantial environmental harm; and

(ii) there is no other equitable remedy available as a matter of law; and

(B) if a court determines that subparagraph (A) does not apply to the covered agency action the only remedy the court may order with regard to such agency action is to remand the matter to the agency with instructions to, during the 180-day period beginning on the date of the order, take such additional actions as may be necessary to redress any legal wrong suffered by, or adverse effect on, the plaintiff, except such additional actions may not include the preparation of a new agency document unless the court finds the agency was required and failed to prepare such agency document.

(2) EFFECT OF REMAND.—In the case of a covered agency action to which paragraph (1)(B) applies, the agency may—

(A) continue to carry out such agency action to the extent the action does not impact the additional actions required pursuant to such paragraph; and

(B) if the agency action relates to an agency document, use any format to correct such document (including a supplemental environmental document, memorandum, or errata sheet).

This seems to be about “when courts determine that something needs to be done with the document, just fix it don’t do a new document (unless..)”. This seems, together with the 180 day agency requirement, it would help with “you didn’t do this”, FS issues new doc, “you didn’t do that” recursive court cases, which are probably just as annoying for judges and their workload as for the agency.

(d) Limitations on claims.—Notwithstanding any other provision of law (except this section), a claim arising under Federal law seeking judicial review of a covered agency action shall be barred unless—

(1) with respect to an agency document or the application of a categorical exclusion noticed in the Federal Register, such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the fireshed management project relating to such agency document or application, unless a shorter period is specified in such Federal law;

(2) in the case of an agency document or the application of a categorical exclusion not described in paragraph (1), such claim is filed not later than 120 days after the date that is the earlier of—

(A) the date on which such agency document or application is published; and

(B) the date on which such agency document or application is noticed; and

(3) in the case of a covered agency action for which there was a public comment period, such claim—

(A) is filed by a party that—

(i) participated in the administrative proceedings regarding the fireshed management project relating to such action; and

(ii) submitted a comment during such public comment period and such comment was sufficiently detailed to put the applicable agency on notice of the issue upon which the party seeks judicial review; and

(B) is related to such comment.

The time limit seems useful since this says that the party filing the claim must have participated in the administrative proceedings and submitted a comment. This also streamlines the process such that it requires the plaintiffs to have specific claims related to previous concerns. This signals to the agency what the real issues are. Perhaps it would relieve plaintiffs of writing “kitchen-sinkery” complaints?

(e) Definitions.—ln this section:

(1) AGENCY DOCUMENT.—The term “agency document” means, with respect to a fireshed management project, a record of decision, environmental document, or programmatic environmental document.

(2) COVERED AGENCY ACTION.—The term “covered agency action” means—

(A) the establishment of a fireshed management project by an agency;

(B) the application of a categorical exclusion to a fireshed management project;

(C) the preparation of any agency document for a fireshed management project; or

(D) any other agency action as part of a fireshed management project.

(3) NEPA TERMS.—The terms “categorical exclusion”, “environmental document”, and “programmatic environmental document” have the meanings given such terms, respectively, in section 111 of the National Environmental Policy Act of 1969 (42 U.S.C. 4336e).