Legislation

House of Representatives v. BLM – monuments and the public lands rule

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Grand Staircase – “visitutah.com” (Larry C. Price)

Dismissal of a lawsuit against President Biden’s proclamation restoring the boundaries of the Grand Staircase and Bears Ears national monuments allows the NEPA process to develop a management plan for these areas to proceed unhindered.  Biden ordered the BLM to work on replacing the Trump Administration’s resource management plan, and the BLM published its draft RMP on August 11 for public comment.

BLM may proceed unhindered, that is unless Congress decides to hinder them.  The FY2024 Interior, Environment, and Related Agencies Bill the House Appropriations Committee passed in July, which the full House of Representatives is expected to vote on in September, includes a rider that would require the BLM to manage the Grand Staircase NM in accordance with the plan finalized after Trump reduced the monument.

Which is the better planning process – RMPs based on public involvement through NEPA or RMPs based on appropriations riders?

The bill would also deny funding to implement the BLM’s public lands rule (a popular topic with many posts here from Sharon).  Another bill would force BLM to withdraw the rule (without considering all those public comments).

Kya Marienfeld, wild lands attorney for SUWA, called the Utah congressional delegation’s lack of support for the state’s public lands disappointing but adds that opposition is offset by more enlightened members of Congress who actively support the Grand Staircase and other public lands.

Appropriation riders seem to be kind of crap-shoot in the turmoil of budget negotiations, so I have no idea what the betting line would be on President Biden signing off on this one.  The “more enlightened members of Congress” may have more of an influence on defeating the withdrawal proposal.  Is that a bad thing?

 

 

Cottonwood: Some Observations from the March 23, 2023 Hearing and a PERC Post

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I am not a fan of watching Congressional Hearings because there are many people quite full of themselves with various axes to grind, who waste our time blathering on about unrelated things or giving political speeches about why the other party is bad.   It would be more fun if the videos had a chat function and we could throw virtual flags on things  like “unnecessary pontificating” and “completely off the topic of this hearing”.  Of course, both sides do it. Congresswoman Kamlager-Dove, from LA (my native district) was filling in for Joe Neguse (from Boulder, Colorado) as the ranking member. She’s in her first term. On the House Natural Resources Committee. From LA. If I were Joe, I would ask Congressfolk with skin in the national forest game or some knowledge thereof to fill in for him at a hearing like this.. but that’s just me.

Anyway, I watched this one in March and picked out some interesting wonkish parts for you.

It’s fun to watch Representative Kamlager-Dove (with a unique pronunciation of “salmon”)  grill (so to speak) Chris French on Cottonwood. Starts at 1:50:32.  It did make me wonder whether short timeframes (11 days) in the Sierra for reconsultation might have to do with pressure from important Congressfolk in California?  Anyway, Rep. Kamlager-Dove cuts Chris off before he has time to explain his views.

Chris also says that at a recent Regional Forester meeting, Cottonwood was thought to be a #1 problem, and also something like “every little thing that diverts natural resource biologists and others holds up implementation of wildfire risk reduction projects.”

At about 2:05:56 Susan Jane makes some statements about Plans making final decisions “binding decisions in plan level documents.” “Off-road vehicle use is authorized in forest plan with no further authorization.” 2:06:21. I thought OHV use was authorized in “travel management” decisions, which tend to be separate from forest plans. For example, the PSICC has a travel management decision we’ve discussed previously, but its forest plan is from 1984.. after doing the travel management plan would they have to reconsult on the forest plan? How is winter travel different from summer travel?  If there are final decisions made in plans, wouldn’t it be better to strip plans of final decisions so you wouldn’t have to reconsult on them all the time?  Oil and gas leasing availability decisions, travel management decisions, and so on seem to do just fine outside the forest planning process.  It seems like they’re done when they’re needed (or forced to via litigation) not on some plan revision timeline which may put a given forest 10 or more years out.

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Here’s a blog post from PERC that summarizes some of Cottonwood:

This week, multiple forest management bills passed out of committee in the U.S. House and Senate with bipartisan support. One of the bills passed by both chambers offers a permanent fix to a controversial Ninth Circuit Court ruling known as Cottonwood. This tiny provision carries huge implications for conservation, impacting the speed at which the Forest Service can mitigate the wildfire crisis and restore healthy forests.

What is Cottonwood? 

The ruling requires the Forest Service to halt forest restoration projects throughout a forest whenever a new species is listed, critical habitat is designated, or other new information is discovered about a species in that forest. The projects can’t proceed until the Service consults with the Fish and Wildlife Service over whether to change its overarching forest plans, a slow and expensive process.

Pausing projects to protect vulnerable species may sound reasonable, but the reality is that this is a duplicative and distracting process. The Service already analyzes this new information before proceeding with specific projects, ensuring that no harm can come to species. The additional plan-level analysis is a duplicative bureaucratic obstacle.

And the pause itself is no small matter.

Consider the case of the Bozeman Municipal Watershed Project in PERC’s headquarters in Bozeman, Montana. The project was intended to create critical fire breaks and insulate Bozeman’s watershed from wildfire risk, but the urgently needed restoration work was delayed by 18 years. Once one suit filed under the Cottonwood precedent was resolved, another would be put forth, creating delay after delay and leaving Bozeman’s drinking water vulnerable to a wildfire.

Such examples explain why the Obama administration said the Cottonwood ruling would “cripple” the Forest Service.

How can this hurdle be addressed?

A temporary legislative fix was put in place in 2018, but it expired in March 2023. With Cottonwood left unchecked, Forest Service Deputy Chief Chris French estimates projects could grind to a halt in 87 forest plans across the West. According to French, completing duplicative analysis for all of these forest plans would take “somewhere between 5 and 10 years and tens of millions of dollars.” With an 80-million-acre forest restoration backlog, that’s time and money the Forest Service does not have.

That’s why this bipartisan congressional action is so welcome. It’s past time Congress establishes a permanent fix for Cottonwood.

“Wildfires move fast, and they don’t wait around for bureaucracy that’s slow,” notes PERC CEO Brian Yablonski. “The bipartisan Cottonwood fix will foster more resilient forests, nurture healthy wildlife habitat, and play a critical role in tackling the wildfire crisis. With larger, hotter wildfires fueled by a backlog of forest restoration projects, it’s critical we remove needless and redundant obstacles to this urgent conservation work.”

PERC stands with other conservationists in thanking Sen. Steve Daines (R-MT) and Chairman Joe Manchin (D-WV) in the Senate and Chairman Bruce Westerman (R-AR) and Rep. Matt Rosendale (R-MT) in the House for their leadership in protecting our forests.

What happens next? 

Now that the bills have committee approval, they move forward for votes by the entire House of Representatives and Senate, after which they go to the President for his signature.

PERC will continue to support this bipartisan effort and move us farther down the path to fixing America’s forests.

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The FS testimony for the above hearing includes the fact that the two circuits disagree.  Since I live in 10th circuit territory, I thought that that was worth mentioning.

The pair of Ninth Circuit court decisions, commonly referred to as Pacific Rivers Council (PRC) and Cottonwood, which held that a new ESA listing of a species or critical habitat designation required the Forest Service to reinitiate consultation on approved land management plans because either the plan was an “ongoing action” (PRC) or because the agency retains discretion to authorize site–specific projects governed by the land management plan (LMP) (Cottonwood), have no basis in the ESA or its implementing regulations. LMPs provide general management direction for an entire national forest or grassland. This direction is then integrated into projects, which normally requires a second decision and ESA consultation to dictate what on–the–ground actions can be taken. A Tenth Circuit decision (commonly known as Forsgren) reached a different conclusion than the Ninth Circuit’s conclusions in Cottonwood, and instead held that the Forest Service did not need to reinitiate consultation on an approved plan with the Services because LMPs are neither ongoing nor self–executing actions for purposes of the ESA.

I don’t know why we would assume that the 9th Circuit is right and the 10th Circuit is wrong. In case you’re curious,there are many National Forests outside the 9th Circuit.

 

TGIF TSW Random News Roundup

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F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.

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Feel free to add your own “news of the week” in the comments.

Tuesday’s House Resources Committee Hearing on Various Wildfire and Other Bills

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A kind TSW reader sent me a Marc Heller story from E&E News. Here’s a link to the hearing on last Tuesday, May 23, 2023.

Troy Heithecker is a Forest Service Deputy Chief who testified in a hearing Tuesday. I didn’t much like the headline “GOP call for total fire suppression” since the bill says, according to the article:

A bill from Rep. Tom McClintock (R-Calif.) — H.R. 934 — would require the agency to put out every reported fire within 24 hours in forests in drought conditions, at high risk of wildfire or when the National Interagency Fire Center has set the highest level for national preparedness.

That doesn’t seem total to me. Not that I support the bill either, FWIW. Hopefully if the fire had a high chance of getting away due to conditions, or there were few resources available, the FS would do that without legislation. Of course it’s hard to predict the future. I’d see this as signalling to “be more careful, especially in my District.”

I know why the FS says this.. but people want to hear “we’ll be more careful” not “because you experienced it, it’s really not a problem because look at the national percentages. Tell that to the New Mexicans about prescribed fire.

But Heithecker said the agency already puts out as many as 98 percent of the wildfires reported within 24 hours. He estimates that perhaps 1 percent are monitored or allowed to burn for resource benefit, such as allowing naturally occurring fire to thin forests that have evolved with it for centuries.

Anyway, enough about wildfire.. what about NEPA?

McClintock proposed another bill, H.R. 188, to extend the use of 10,000-acre categorical exclusions from the National Environmental Policy Act that have been in place in the Sierra Nevada since the Obama administration.
The Forest Service supports much of that proposal, Heithecker said, while looking to work on the details.
While categorical exclusions from NEPA often draw criticism from environmental groups, Heithecker defended them as “just another category of NEPA” that allows the Forest Service to move faster on projects that don’t pose a significant environmental risk.
As many as 85 percent of the NEPA-related decisions the Forest Service makes are done through categorical exclusions, he said, and many of the decisions involve tracts of land bigger than 10,000 acres.
“Having tools to help us do that work at scale faster is a benefit to us,” he said.
Even with the expedited reviews, Heithecker said, projects “have to comply with all of those environmental laws.”

I think it’s unclear that re-upping outfitter-guide special use permits, or permitting bike races, with a CE, should be in the same “85% of decisions” box as vegetation treatments. When people testify about fuel treatments, why not use the CE numbers for.. fuel treatments? I am still interested in the CEs currently available and how often they are used for fuel projects compared to EAs and EISs, and the relative amounts of acreage involved. Chelsea Pennick looked at that in Idaho, as I recall, when she studied collaboration but what do we know about the Sierra? Because, as we have seen, people on the Tahoe are successfully using EAs for 2K acre projects. Maybe CEs are not the answer, after all Lake Tahoe has its own CE. It would be interesting to talk to NEPA practitioners in the Sierra about this. Any of you out there, please email me.

If any folks have other observations on the hearing, please comment.

Fire Retardant Legislation in Congress: Introduction of HR 1586 and Companion Bill in Senate

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The San Bernardino National Forest team works on the Pilot Fire behind Ryan Nuckol’s home in Hesperia on August 9th, 2016. The pink fire retardant line is one of the reasons why fire crews were able to save the home from the fire. Don Tuffs for KPCC.

Speaking of the co-evolution of statutes and court cases, and the idea that talking to all kinds of people- practitioners, academics, stakeholders- involved and hashing things out in dialogue is a better way to develop policy than behind settlement doors..

it looks like Andy has been successful at creating a bipartisan effort to do just that with regard to fire retardant.. check out this piece from the Plumas News.

Citing the importance of using fire retardant as an important tool for the Forest Service in fighting wild land fires, Congress is taking action.

Representatives Doug LaMalfa (R – CA) and Jimmy Panetta (D – CA) introduced the Forest Protection and Wildland Firefighter Safety Act of 2023 today, March 14. This bill creates a Clean Water Act exemption for federal, state, local, and tribal firefighting agencies to use fire retardant to fight wildfires. Fire retardant is an essential tool used to contain or slow the spread of wildfires. Currently the Forest Service and other agencies are operating under the assumption that a National Pollutant Discharge Elimination System (NPDES) permit is not required for the use of fire retardant because the regulations specifically state that fire control is a “non-point source silvicultural activity” and communications from EPA dating back to 1993 indicated a permit is not required.

This bill is being introduced because an environmental group is suing the Forest Service under the Clean Water Act to require a NPDES permit to use fire retardant, and they have requested an injunction on the use of fire retardant until the Forest Service receives this permit, which could take years. If the injunction is granted and fire retardant is not available for use in the 2023 fire year, firefighters and individuals living in forested areas would be in peril, millions of acres of forested land would be in danger, and billions of dollars of infrastructure would be at risk.

Congressmen LaMalfa and Panetta were joined by 22 Members of Congress: Reps. Dan Newhouse (R-WA), John Duarte (R-CA), Russ Fulcher (R-ID), Tom McClintock (R-CA), John Garamendi (D-CA), Austin Scott (R-GA), Amata Radewagen (R-AS), Troy Nehls (R-TX), Lauren Boebert (R-CO), Rick Crawford (R-AR), Young Kim (R-CA), Ryan Zinke (R-MT), Blake Moore (R-UT), Burgess Owens (R-UT), Mike Simpson (R-ID), Trent Kelly (R-MS), Ken Calvert (R-CA), Pete Stauber (R-MN), Darrell Issa (R-CA), Mary Miller (R-IL), Kevin Kiley (R-CA), and Matt Rosendale (R-MT).

Senator Cynthia Lummis (R – WY) introduced a companion bill in the Senate.

There’s a hearing on March 23, 2023 at 2 PM eastern which includes this bill, HR 1586. Here’s a link.

Giving EPA power over more aspects of a land management agency’s work could be a recipe for disaster, as per the GAO report we discussed last week.

Side note for those of you who know more about this.. if the drops in water are due to accidents or safety, how would getting a permit help with that? It seems to me that if there are things to be fixed, fixing should be approached directly, not through the EPA. But maybe the court case is just leverage for fixing.

Should ANILCA Access Provisions Apply Outside Alaska? New Case by Wilderness Workshop and Rocky Mountain Wild

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The White River National Forest has approved year-round access and paving of Forest Service Road 780, a summer-only route above Edwards, to provide access to the proposed 19-home Berlaimont Estates project. (Jason Blevins, The Colorado Sun)
This is usually Jon territory, but since it’s in Colorado…
Interesting story by Jason Blevins at the Colorado Sun. Basically the plaintiffs are charging that ANILCA shouldn’t apply outside Alaska. Calling its use by Supervisor Fitzwilliams an “artful dodge” (plaintiffian hyperbole) is kind of silly in my view. TSW veterans of the great Village at Wolf Creek controversy (or as I called it “reasonable access for unreasonable people”) and other access issues across the country will know that Scott didn’t just dream it up.. after all, as the article says, the FS has been using the legal precedent since the 9th Circuit called it in 1981, and is certainly what FS folks are told by their lawyers.

has been deployed many times in the West and in Colorado to force the Forest Service to provide roads across public land to access islands of private property.

To me it says reasonable access and reasonable is in the eye of the beholder. Should this be changed to “not required to provide any kind of access?” Seems to me that that question should go back to Congress. Many of us could help with stories on the difficulties of interpreting “reasonable,” and ideas for useful clarifications. That’s one reason I prefer not to let courts handle these things..they can say what’s wrong, but can’t tell us what’s right, or what could work better.

Extra points to Jason for explaining this complex stuff accurately (or at least as far as I can tell) and attaching the complaint and a link to the precedent case Montana Wilderness Association v. US Forest Service. And Bob Zybach and others will appreciate that he spelled out how to pronounce FLPMA and ANILCA. If you appreciate his work, please consider sending him a note. Remember that old management idea “catch people doing something right”?

You don’t hear much about FLPMA and the Forest Service, since FLPMA is generally regarded as a BLM statute, based on the definition of public lands in it. See here.

This Complaint involves Forest Service decisions regarding National Forest System lands in Western Colorado. Defendants applied the mandatory access provisions of the Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101 et seq. (“ANILCA”) instead of the discretionary access provisions in the Federal Land and Policy Management Act of 1976 (“FLPMA”) that apply to federal public lands outside of Alaska, including National Forests. 43 U.S.C. § 1740 of 1976 (“Secretary of Agriculture, with respect to lands within the National Forest System, shall promulgate rules and regulations to carry out the purposes of [FLPMA]” when considering access requests.). The National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq., (“NFMA”) also applies to the National Forests, but because access issues were inadvertently omitted from NFMA, the access provisions involving National Forests were included in FLPMA. Applying ANILCA’s Alaska-specific provisions to an access request
involving the National Forest in the Lower 48 States is contrary to the plain language of ANILCA and FLPMA.

It sounds like the FS was supposed to promulgate rules in NFMA.. did they? Lands people out there?

Check out the judges’ decision in that case, which goes back to mind-curdling details of the legislative history. And it returns to Colorado.

The appellees, however, have uncovered subsequent legislative history that, given the closeness of the issue, is decisive. Three weeks after Congress passed the Alaska Lands Act, a House-Senate Conference Committee considering the Colorado Wilderness Act interpreted § 1323 of the Alaska Lands Act as applying nation-wide:

Section 7 of the Senate amendment contains a provision pertaining to access to non-Federally owned lands within national forest wilderness areas in Colorado. The House bill has no such provision.
The conferees agreed to delete the section because similar language has already passed Congress in Section 1323 of the Alaska National Interest Lands Conservation Act.

Should be an interesting case..

The specific White River case seems to be about a summer only unpaved road being changed to an all-season paved road. We discussed it here, but it seemed like that story was used to take a swipe at Trump-era NEPA regs. And yet, here we still are…

Does Anyone Have Analysis of “Recreation Not Red Tape” Bill?

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For those who don’t follow the comments, Greg Beardslee brought up and Steve Wilent posted a summary of this bill. It appears to have two D and two R cosponsors.

Update: I heard from a knowledgeable person that:

This has been merged into the current Outdoor Recreation Act S3266.   It passed the Senate Energy and Natural Resources Committee.  There is an effort to get it added to the National Defense Authorization Act.  Here’s a link to that bill, known as American’s Outdoor Recreation Act.

I was interested in finding analyses of the bill.  There was testimony at a hearing, including by the Forest Service, but I couldn’t find it. Hopefully someone has a link and can put it in the comments.

 

TSW Weekend Roundup

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Please add other news items of interest in the comments.

Senate Energy Hearing on a Potpourri of Bills.. check out the different FS vs. BLM testimony on the same topics…

Here’s a post from Wildfire Today that shows the locations on the video of different times of interest.

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Could the proposed Sequoia bill have lit a fire under the FS feet (or the WH or Dept’s) to let them use existing emergency authorities?

Sometimes this is part of the “behind the scenes” cycle.  1. Congressional types want something to happen. 2. Admin doesn’t like being told what to do. 3. Comes up with “hey the Agency can already do it… if we let them..”. Therefore we don’t need legislation.  4. Congress loses attention. 5. Admin and interest group alllies stop supporting intervention and/or intervention is defeated in court.  6) Return to step 1 but if and only if Congress maintains attention AND interested Congressionals have enough clout to make things happen.

I have seen this happen most notably with Condition Based NEPA and bug projects.

We perhaps see this in the Sequoia Bill testimony from the FS. Perhaps the door will open for more uses of the emergency provisions- or, if the opening was directed to reduce Congressional interest in the Sequoia bill, perhaps not.

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From E&E News..

Crockett said the agency supports several goals of the forest-thinning bill, S. 4904,introduced by Manchin and ranking Republican John Barrasso of Wyoming (E&EDaily, Sept. 22). But officials have “multiple concerns” with the bill’s language on forest-thinning targets, Crockett said. That bill, titled the “Promoting Effective Forest Management Act,” calls on the Forest Service to report regularly on whether land it manages is a net emitter or absorber of carbon on a regional basis.

It would also rein in the Biden administration’s efforts to define, take inventory of and potentially further limit timber harvesting on old-growth and “mature” forests — a section of the legislation that Crockett said the agency wants to “better understand” and help revise.

During the hearing, Sen. Steve Daines (R-Mont.) promoted his S. 2561 to undo the 9th U.S. Circuit Court of Appeals’ ruling in Cottonwood Environmental Law Center v. Forest Service that has resulted in longer consultations between the Forest Service and the Fish and Wildlife Service on certain forest management projects. He pointed to support for undoing the ruling from federal officials, including during the Obama Daines’ bill, which would clarify that new consultations on forest management plants aren’t required when new information about potential impacts on endangered species emerges, passed the committee by voice vote in July, over objections from Sen. Ron Wyden (D-Ore.) (E&E Daily, July 22). Daines said he’d like to see it attached to any revived permitting reform bill from Manchin.

Question to Oregonians… why does Wyden not support the Cottonwood fix?

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David Hayes is leaving the WH.. is that good news for people hoping to not have to deal further with MOG? Rumor has it that he was the main push. for the effort.   Only time will tell.

Interesting take on MOG and carbon in the NE by Yale scientists.

Note that I got pushback on this blog for stating “Dead trees sequester no carbon” which is actually pretty obvious. I didn’t say they can’t store carbon. And these scientists say the same:

When a tree dies from logging or on its own, that tree is no longer going to be sequestering carbon, and the carbon from that tree is eventually going to go back into the atmosphere.

Eagles Permitting EA from Nossaman blog.

On September 30, 2022, the U.S. Fish and Wildlife Service (Service) published a proposed rule to amend its eagle permit regulations (Proposed Rule) administered in accordance with the Bald and Golden Eagle Protection Act (BGEPA). The Proposed Rule seeks to improve administration of the eagle permit program by establishing a general permit pathway for eligible wind energy and power line applicants for incidental take of golden eagles and bald eagles. Eligibility criteria proposed by the Service for participation in the general permit program include factors such as eagle abundance and nest proximity. The Proposed Rule also establishes general permits for disturbance of bald eagle nests and removal of bald eagle nests under most circumstances. At the same time, the Service has published a draft environmental assessment evaluating alternatives to its proposed general permits. The Proposed Rule arises as part of a court settlement from a lawsuit brought by the Energy and Wildlife Action Coalition challenging the eagle permit regulations. The public will have until November 29, 2022 to submit comments on the Proposed Rule.

And this from the Center for Western Priorities:

The Biden administration is proposing a new permitting program to address the issue of wind turbines killing bald and golden eagles, without slowing down the construction of new wind energy projects. Bald eagle numbers have quadrupled since 2009 to about 350,000 birds, but there are only about about 40,000 golden eagles left.

The proposal, which comes after several major utilities have been federally prosecuted in recent years for killing large numbers of eagles without permits, calls for new permits tailored to wind-energy projects and power line networks. U.S. Fish and Wildlife Service Director Martha Williams said the new program would provide “multiple pathways to obtain a permit” while also helping conserve eagles.

Federal officials have declined to say how many eagles are killed illegally by wind farms each year. Last year, companies were permitted to “take” 170 golden eagles—meaning that many birds could be killed by turbines or lost through impacts on nests or habitat, according to permitting data obtained by The Associated Press. Companies are responsible for offsetting each death by ensuring at least one eagle is saved somewhere else.

 

Future webinars of interest:

A webinar on geothermal via the WGA (Western Governors’ Association), Oct. 6

Sparking Solutions: Reducing Risk at the Wildland-Urban Interface from RFF (Resources for the Future). Oct. 12

Fossil Fuels Litigation on Public Lands

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In recent months we have seen a lot of litigation over fossil fuel production and climate change at the national level, (see comment), lease availability stage (resource management plans, see MT/WY), leasing stage (see North Dakota Resource Council) and drilling stage (see NM/WY permit case) (and then there’s the pipeline cases).  This does suggest there might be some efficiency to be gained by rethinking their planning/NEPA process for oil and gas, but that may be pointless given the political polarization of this issue.  Anyway, here is the latest installment.

Court decision in Citizens for Clean Energy v. USDI (D. Mont.)

On August 12, the United States District Court for the District of Montana ordered the Interior Department to pause the issuing of new coal leases pending compliance with NEPA requirements to consider climate effects.  The order reinstates a 2016 freeze on new federal coal lease sales, which the Trump Administration lifted two months after taking office.  The court found that a Bureau of Land Management environmental assessment of that order was insufficient.  A more comprehensive environmental review of the revocation of the coal leasing moratorium must be completed before the BLM can start coal leasing again.  There is a link to the opinion in the press release above, and here is a news article.

Court decision in Louisiana v. Biden (5th Cir.)

On August 17, the U.S. Court of Appeals for the 5th Circuit vacated a district-court injunction decision from last year that could have forced the Biden Administration to proceed with auction of oil and gas drilling rights in federal lands and offshore.  The case was remanded to the district court because the court’s order did not “state its terms specifically and describe in reasonable detail the conduct restrained or required.”  (The article includes a link to the opinion.)

The appeals court gives the Biden administration a potential path to pause leasing again.  However, the recently passed Inflation Reduction Act mandates new oil and gas sales off the coast of Alaska and in the Gulf of Mexico and also tethers the construction of wind and solar facilities to ongoing oil and gas auctions.

Court decision in Western Energy Alliance v. Biden (D. Wyoming)

In another attempt to force the government to drill, on September 2, a judge in the federal district court for Wyoming held that the Department of the Interior legally delayed a federal oil and gas lease sale because,  “…postponing the first quarter 2021 lease sales was done to ensure NEPA (National Environmental Policy Act) compliance with several then-recent federal court opinions that negated previously authorized oil and gas lease sales.”   The court also rejected challenges to the program-wide “pause” authorized by executive orders (the same issue as in the 5th Circuit appeal above).

“The court reaffirmed that BLM has broad leeway to postpone lease sales in order to make sure that it considers the environmental impacts of leasing,” said Michael Freeman, a senior attorney at Earthjustice’s Rocky Mountain office.  According the Western Energy Alliance, the ruling “essentially gives the government a get-out-of-jail-free card when it comes to the environmental analysis required for any lease sales,” adding that if Interior Department says it’s not done, “it doesn’t have to hold sales.”  “If the agency never makes the decision, then we have no recourse,” said Ryan McConnaughey, vice president of the Petroleum Association of Wyoming.  (These quotes are from this article.)

Plaintiffs don’t interpret it that way, but it is hard to make the government do something, especially if it argues it is required by law to do other things first.  (Regarding the idea of mandating leases, it’s also hard to get out of meeting NEPA requirements, even if there is a deadline.)

Settlement.

On September 6, the Bureau of Land Management settled a lawsuit in the Montana federal district court involving previously sold oil and gas leases in Montana and North Dakota which will require it to evaluate potential effects on climate, which is similar to recent agreements for other leases elsewhere.  The agency agreed not to approve any more drilling applications on the affected lands until that new leasing decision is made. The agreements don’t include deadlines for new environmental reviews, and they don’t cancel any leases.

 

H.R 5631 -Tim Hart Act as Stand-Alone Bill

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No Grass Creek Fire East of Deer Lodge Montana, from Hotshot Wakeup Twitter feed.

The Hotshot Wakeup person I think has a good point suggesting that people contact their Representatives to urge them to support the Tim Hart Wildland Firefighter Classification and Pay Parity Act (HR 5631) as a stand-alone bill, and get it out from under being used as a political football. Here’s the link.  At least it sounds plausible to me. Other views welcome.

It looks like Liz Cheney is the only cosponsor on the R side, don’t know why that is.  Maybe someone can explain.  Maybe you, if you call your R Representative’s Office and ask them. , especially if you live in fire country.   Maybe there’s already an article about this somewhere? But please refrain from any pre-midterm-related anti-R vitriol in the comments.

PS..if you’re interested, check out the amazing fire photos and videos on The Hotshot Wakeup twitter feed.  Fire folks send them in from all over. Example on of Bolt Creek Fire in Washington.