Litigation

5 Groups Appeal Tongass Timber Sale: 6,000 acres of old-growth would be logged, 46 miles of new roads constructed

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The following was sent to me by the Greater Southeast Alaska Conservation Community (GSACC). If you have any questions about the release and the info contained within it, please contact the GSACC directly. Thanks. – mk

On August 16, GSACC and four other organizations filed an administrative appeal of the Tongass Forest Supervisor’s decision to proceed with the Big Thorne timber project. The appeal went to to the next highest level in the agency, Regional Forester Beth Pendleton. The appeal is known as Cascadia Wildlands et al. (2013), and other co-appellants are Greenpeace, Center for Biological Diversity and Tongass Conservation Society.

The project would log 148 million board feet of timber [enough to fill 29,600 log trucks], including over 6,000 acres of old-growth forest from heavily hammered Prince of Wales Island. 46 miles of new logging roads would be built and another 36 miles would be reconstructed. Our points of appeal encompass fundamental problems with the concept of the project, its economic problems, aquatic impacts from roading and logging, and severe impacts to wildlife including wolves, deer, bear, goshawks and flying squirrels. Our Request for Relief is that “the decision to approve the ROD and FEIS be reversed and that the project be cancelled in its entirety because of multiple failures to comply with the Administrative Procedure Act (APA), National Environmental Policy Act (NEPA), National Forest Management Act (NFMA), Clean Water Act (CWA), Alaska National Interest Lands Conservation Act (ANILCA), Tongass Timber Reform Act (TTRA), Federal Advisory Committee Act (FACA) and various regulations and policies implementing these statutes.”

Included with the appeal were three expert declarations. One is by Dr. David Person, who did 22 years wolf and other ecological research on Prince of Wales Island and recently retired from the Alaska Department of Fish & Game. It says that the predator-prey system on the island (which includes wolves, bear, people and deer) is likely at the point of collapse, with the Big Thorne project being the tipping point. Another declaration is by Jon Rhodes, an expert on the sediment impacts of logging roads and their effect on fish. The third is by Joe Mehrkens, GSACC board member and former Alaska Regional Economist for the Forest Service, on the failings of the economic analysis in the Big Thorne EIS and economic nonsense this project embodies.

The appeal and the declarations are available for viewing and download at this link. Because the appeal is 127 pages, you will likely find the clickable table of contents useful. This series of e-mails illustrates the kind of biological knowledge that the State of Alaska has withheld from the NEPA process for the Big Thorne timber sale project on the Tongass National Forest.

Environmental groups receive $1.25 million in grazing case

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What I think is interesting about this is the quote from the judge where he seems to depart from decisions in Legal World (his purview) to statements about Physical World. Plus it seems like he is giving them bucks based on how much good they do in Physical World. All very confusing (what is real in Physical World and why they should get the money), and unmeasured in a direct logic path, if this quote is correct: their effects in Physical World are the “most important” reasons to give them (more) money. See the last sentence in the excerpt.

Here’s the link and here’s the excerpt (my italics). Perhaps the judge was quoted incorrectly?

Last year, a federal judge ended a court battle between environmentalists, ranchers and the U.S. Forest Service over the effect grazing had on threatened steelhead habitat.
During the nearly 10 years of litigation, U.S. District Judge Ancer Haggerty issued several injunctions that limited grazing at the request of the Oregon Natural Desert Association.
Grazing in the national forest is now governed by a new “biological opinion” developed by the government, which ended curtailments imposed by the court.
Haggerty ultimately concluded that ONDA won several of its legal claims against the Forest Service, which entitled the group to attorney fees and costs from the federal government.
The environmental group originally asked for nearly $1.4 million in compensation, which the government called “prodigious” and “excessive” because ONDA’s legal victories were modest.
The government also claimed the group inflated the requested amount by billing at premium “expert” rates for work that didn’t require extensive environmental experience.
However, Haggerty slapped down the government’s arguments, finding that the “fees requested are great, in large part because this case involved a large administrative record, complex scientific materials and a lengthy duration of time.”
“However, there is no doubt that the hours expended were increased dramatically by repeated delays caused by federal defendants and government counsel,” the judge said in a ruling.
If the defendant were a private party, Haggerty said he would have granted ONDA its full request. Because the money came from taxpayers, though, it deserved more scrutiny, he said.
While the government argued that the amount of compensation should be cut by up to 50 percent because ONDA didn’t prevail on all of its claims, Haggerty said the “federal defendants underrepresent the success plaintiffs achieved.”
The environmentalists “prevailed, or partially prevailed, on eight out of twelve claims eventually litigated, obtained substantial injunctive relief during the years prior to final judgment, and most importantly, were able to reverse the degradation of habitat in the MNF and achieve substantial protections for threatened steelhead,” the judge said.

New Project to Watch: Iron Springs Vegetation Project

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iron springs mpaInteresting how this project is characterized in Courthouse News here…I think the write of the article said “4890 acres of commercial logging.” But in the next paragraph quoting the plaintiffs it says that there are 381 acres of precommercial thinning. So I think you need to subtract that to get a total of commercial. But as we see below the commercial distinction is fairly fine.

SALT LAKE CITY (CN) – Uncle Sam refused to prepare an environmental impact statement before approving a 5,000-acre logging project in southern Utah that threatens rare and endangered species, including spotted and flammulated owls, goshawks, and three-toed woodpeckers, environmentalists claim in court.
The Alliance for the Wild Rockies and the Native Ecosystems Council sued the U.S. Forest Service and Dixie National Forest Supervisor Angelita Bulletts, in Federal Court.
The Forest Service in March approved the Iron Springs “vegetation improvement and salvage project,” authorizing 4,890 acres of commercial logging in Dixie National Forest.
“Among other things, the Forest Service’s decision notice authorizes 3,603 acres of spruce/fir commercial logging utilizing ground-based skidders, at least 1,927 acres of which will occur in old-growth stands, 366 acres of commercial sanitation and salvage logging, 381 acres of precommercial thinning, 152 acres of regeneration logging, and 388 acres of ‘aspen cleaning’ in aspen stands, for a total of 4,890 acres of logging,” the complaint states.
“The decision notice also authorizes road reconstruction and maintenance activities on 36.16 miles of existing roads and 9.61 miles of new, temporary road construction to facilitate logging activities.”
The plaintiffs claim the Forest Service approved the project without preparing an environmental impact statement, “instead finding that the authorized activities would not significantly affect the quality of the environment.”

Sensing that this will be an interesting project to consider (since we’ve never analyzed ones in Utah that I recall), I went to the project website here and found this explanation of why they were doing it.

Treatments within Engelmann spruce/subalpine fir stands Within the project area, there are 5,240 acres of Engelmann spruce/subalpine fir. Approximately 3,603 of these acres would be commercially thinned to reduce stand densities while maintaining a variety of tree sizes. Individual tree marking would designate trees that would be harvested. In addition to the commercial thin, there would be salvage and sanitation harvest of pockets of Engelmann spruce killed or infested with spruce beetle.
Approximately 381 acres of the 3,603 acres of treated spruce/fir stands would also be precommercially thinned to remove trees less than 5-inches diameter that exceed stand density objectives or species mix. Trees greater than 5-inches diameter would be removed commercially.

Trees between 5- and 7.9-inch diameter size class that cannot be sold commercially will be included in the pre-commercial treatment. Approximately 388 acres of scattered aspen clones
within spruce/fir stands would receive aspen cleaning through hand felling of conifer. Within aspen clones commercial-size conifer would be removed; non-commercial-size conifer and some
aspen would be cut and left on site to discourage browsing by larger ungulates, primarily deer, elk, and livestock.

Under the criteria in “Characteristics of Old-Growth Forests in the Intermountain Region” (Hamilton et al. 1993) and a 2007 Regional Office letter (USDA 2007) clarifying meaning and
intent in Hamilton et al. 1993, 2,058 acres of spruce/fir within the project area have old growth characteristics. This determination was made based on an evaluation of existing stand data and new data collected during field surveys. These data and findings are included in the project record. Thinning is needed in these stands to reduce the risk of timber loss due to beetle kill and to forestall the spread of beetle activity to additional trees. Thinning in these areas will be done from below, and will be restricted to trees between 5- and 18-inches diameter.
Of the 2,058 acres with old growth characteristics, 131 acres would not receive treatment. Of the 1,927 acres treated, approximately 1,541 acres would retain old growth status following treatment. Thus, of the 2,058 acres with old growth characteristic, approximately 1,672 acres would retain old growth characteristics. The Forest Plan requires that 7 percent to 10 percent of each drainage be managed as old growth. Retention of 1,672 acres as old growth exceeds the Forest Plan requirement in each drainage within the project area. Details are provided in the Forest Vegetation Report.

Spruce beetle-infested or killed trees throughout the project area would be removed using sanitation/salvage timber harvest and commercial removal. Some stands that contain infested or killed subalpine fir would also be commercially removed. Merchantable, dead standing, and down spruce and fir would be harvested.
Approximately 366 acres in the spruce/fir stands are currently at the desired density. These 366 acres would receive commercial sanitation/salvage treatment only.

Finally, approximately 154 acres would be planted with Engelmann spruce seedlings using hand tools or augers. These areas are conifer strips in the south half of the project area that were
clearcut in the 1960s and that do not contain the desired tree stocking.

I’m sure all the regular followers of this blog will spy a number of interesting things.

1) Is the 152 acres the same as the 154 that they are planting due to not enough stocking. If so, is planting trees the same thing as “commericial logging”.

2) Everyone loves aspen, but if you try to get more by cutting conifers, that’s bad. Or only if you sell them? What difference could it make? 388 acres of hand felling?

3) “Trees greater than 5-inches diameter would be removed commercially.” That’s a good market.

The “issue” with the plaintiffs is that “they should have done an EIS”. Somehow I don’t believe that is really their goal. Plaintiffs are being represented by the Northern Rockies Justice Center here. I think it’s interesting that their mission is in the NW, but they are doing work in southern Utah.

I wonder if a simple statute were passed that required cases (say, as a trial run, FS cases involving vegetation management) to go to mediation prior to litigation, and the mediation record was available to the judge when ruling, and the mediation documents were also publicly available. This could be tried as a pilot anyway.. perhaps starting with this case? Rider, anyone?

Whatever Happened to Public Access to EAJA Fees?

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I had thought that Congress has asked for this; one of my colleagues said that that had never passed. Yet, if agencies are true to the President’s transparency order, then it shouldn’t take a bill from Congress to obtain that information.

As the veteran of many FOIAs, I wonder why it couldn’t be FOIA’d unless the information doesn’t exist already. Which would seem odd because any payments should be documented (like a timber sale contract). Maybe it’s the tables adding them up that don’t exist?
Or maybe they’ve been released and I didn’t hear about it?
. if anyone can help me understand this, I would appreciate it.

Also, Steve Wilent posted this Journal of Forestry article by Mortimer and Malmsheimer in a comment today and I felt it worthy of including in a post for those not following that thread. It talks specifically about EAJA and the Forest Service.

Below is the abstract to the paper:

The Equal Access to Justice Act (EAJA) provides for attorneys fees and court costs to be awarded to parties prevailing in litigation against US federal agencies. We examined EAJA awards paid by the US Forest Service from 1999 to 2005, finding more than $6 million awarded to various plaintiffs. Awards were most commonly paid to environmental litigants, although all categories of litigant stakeholders made use of the law. Although it remains uncertain whether EAJA provides an incentive to sue the US Forest Service in any specific instance, because litigation against the US Forest Service generally has a low probability of success, EAJA one-way fee shifting does alter litigation risks among potential plaintiffs. Frequent EAJA claimants often possess considerable financial resources calling into question
how the purposes of the law have evolved in the last 20 years.

Colt Summit- The Next Round

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colt summit table

This is one of our favorite projects to follow, for newer readers. One of the reasons is that there is a narrative that you will hear from some “if only the FS worked with collaboratives, then litigation would cease to be a problem.” I think I even heard that in some of the Chief’s testimony before Congress. Colt Summit is a data point that refutes that narrative.

From the current EA (my bold):

In response, members of the Lolo Restoration Committee unanimously agreed Colt Summit was consistent with the 13 principles of the Montana Forest Restoration Committee and the project would accomplish its restoration, monitoring, and adaptive management goals. Members of the Southwestern Crown Collaborative applauded the project for its responsiveness to their strategy for landscape restoration. Support for the project was provided by the Montana Fish Wildlife and Parks and United States Fish and Wildlife Service; agencies responsible for managing the recovery of grizzly bear, Canada lynx, and other wildlife in the project area.

Last week, the next stage of Colt Summit was released. To summarize, the judge wanted more lynx cumulative effects analysis. As far as I can understand it, the claims that the project would hurt lynx were not upheld, but they just didn’t analyze the cumulative impacts the way (at the scale?) the judge thought was best. (other more legally minded folks are welcome to clarify my understanding). The FS provided it, but it wasn’t in the right format. (I don’t think folks are allowed to ask format questions, but I could be wrong; I’d like to hear the FS story of how that misunderstanding happened).

So hopefully now it is in the correct format. Here’s the link to all the analyses. An amazing amount of verbiage for 600 acres of commercial thinning. As Derek would say, this would probably not be a big deal in Wyoming, Colorado, or South Dakota (I don’t know about points west). If I had to generate a hypothesis, it would be that groups in Montana like to sue more, rather than any difference in environmental conditions. I’d be interested in other hypotheses that explain the data, including this data point. Here’s where WELC claims “Victory!”, perhaps a bit early. It does make me curious who funds them and why they pick the projects they do.

It is the July 2013 Supplemental EA here..

The original Environmental Assessment has been supplemented to assure the Court and the public the Forest Service has provided the hard look that is required; more specifically, to characterize past projects or actions the Court found to be lacking in the original Environmental Assessment and project record. In this SEA, the Forest Service describes past, ongoing, and reasonably forseeable actions and characterizes their aggregate effects on lynx. This characterization is provided at the scale of the LAU because the Forest Service prevailed in its selection of the LAU as the appropriate scale to conduct such analysis Friends of the Wild Swan et al v Austin (D. Mont. 2012) (9:11-cv-00125-DWM, Doc. 50, Filed 07/11/12, pp. 22-23 and 40-43). In response to public comment, activities outside of the LAU have also been examined. In addition, portions of the original Environmental Assessment have been modified to provide a more comprehensive discussion of the project in order to support the supplemental analysis for lynx.

I like that the District clarified and improved some other parts of the document based on what they were hearing. They are trying to do a good job at explaining what they are doing.

However, if the judge is happy with this one, the taxpayer paid for all the supplemental analysis because one group decided to sue. Somehow it doesn’t seem …er… just. And no, because the court system is called “justice system” does not change my impression. It seems like lawyers would say it provides “accountability” for the Forest Service, but there doesn’t seem to be much accountability for the watchers of the Forest Service to the citizens.

In my opinion, a certification-like process would do more for accountability across all forests, be more transparent, improve actions done rather than actions as written, and be less costly for the taxpayer.

Fact Checking Roady, Daines and Hubbard

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Last week I had to shake my head and literally laugh at some of the predictable statements of supposed fact being made during a hearing of the House Natural Resources Subcommittee on Public Lands and Environmental Regulation.  Since one of the articles about the hearing has just been posted here, I figured I’d put together a fact-checking post of sorts.

“We need to invest more resources up front to keep our forests green and healthy, rather than wait until they are dead and dying, or on fire,” -Chuck Roady of F.H. Stoltze Land and Lumber

That’s a good example of a pollyannish statement that has no basis in actual forest ecology and science.

“Rep. Steve Daines, R-Mont., said another problem hampering the federal government’s ability to manage forests is an onslaught of frivolous lawsuits filed by environmental groups against the Forest Service.”

Filing of “frivolous lawsuits” is illegal, Congressman, and any attorney that files an actual “frivolous lawsuit” would be punished by the Courts and possibly even dis-barred.  There has never been one single “frivolous” lawsuit filed in Montana, or elsewhere, concerning Forest Service timber management. I’d challenge my Congressman Daines, or anyone else, to provide one concrete example.

Also,

“onslaught of frivolous lawsuits?” Or Daines claim that: “He said about 40 percent of the 124 management projects in Region 1, which includes Forest Service land in Montana and Idaho, have been appealed or litigated.”

Fact is, according to the most-recent GAO report, of 132 total “fuel reduction” decisions in the Forest Service’s Northern Region only 11, or 8% were litigated.  And those “fuel reduction” projects that were litigated includes issues such as logging in old-growth forests miles from homes or communities, logging within habitat for threatened or endangered species, logging is areas that are already heavily logged, roaded and fragmented, etc.

Also, the truth is that the public appeal process is part of the official public review process established by the US Congress. A member of the US Congress complaining that some people or groups filed used the public appeal process set up by Congress is the same as complaining that people participate in the process at all.  What’s next Congressman Daines? Bitching that citizens actually vote?

According to the actual actual GAO report the US Forest Service Northern Region had 132 total fuel reduction decisions during FY 2006 to FY 2008. Of those 132 total fuel reduction projects 11 were litigated. That comes to about 8%.

Jim Hubbard, deputy chief of state and private forestry for the Forest Service, said “such suits have ‘virtually shut things down’ on national forest land in Montana, ‘and so environmental clearance there … has been difficult.’”

Hmmmm….”Virtually shut things down” Hubbard? Really?

Here’s a link to the Forest Service’s Timber Sale Program Cut and Sold Reports for Fiscal Year (FY) 2012 in the U.S. Forest Service Region One.

Please note that over the past five years the Forest Service in Region One (which includes 12 National Forests located within the perimeter of northeastern Washington, northern Idaho, and Montana; and the National Grasslands in North Dakota and northwestern South Dakota. the Black Hills in SD) has sold enough timber to fill 239,000 log trucks, which if lined up end-to-end, would stretch 2,048 miles, or nearly from Missoula, Montana to New York City.

According to the Forest Service’s Cut and Sold report, here are the numbers over the past five years for the Forest Service’s Region One:

• FY 2012 Region One sold 208.3 MMBF, cut 219.4 MMBF (“Virtually shut things down?”)

• FY 2011 Region One sold 211.9 MMBF, cut 202.0 MMBF. (“Virtually shut things down?”)

• FY 2010 Region One sold 253.4 MMBF, cut 188.7 MMBF. (“Virtually shut things down?”)

• FY 2009 Region One sold 292.9 MMBF, cut 186.0 MMBF. (“Virtually shut things down?”)

• FY 2008 Region One sold 229.2 MMBF, cut 167.4 MMBF. (“Virtually shut things down?”)

NOTE: MMBF = million board feet. There are approximately 5,000 board feet per logging truck.

As you notice, the volume of timber sold by the US Forest Service in our Region has stayed pretty steady, while the volume of timber cut per year has actually gone up slightly during the past five years.  But, hey, the Forest Service timber sale program in the Northern Region is “Virtually shut down,” right Hubbard?

So, consider these actual numbers and this image of log trucks lined up end-to-end across the country in the context of those calling for more logging of our national forests and spreading false, misleading and self-serving lies about “Virtually shut things down.”

Senate Committee Hearing: Challenges and opportunities for improving forest management on federal lands

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img_chairman

A reader sent me this link: here’s his review:

Bill Imbergamo’s hit it out of the park with his oral and written testimony. I wanted to give him a hug.

Norm Johnson was awesome about the variable retention and science, children’s books, etc

Risch was spot-on also.

If you haven’t watched, I highly recommend it. VERY worthwhile investment of time.

So far I managed to get to a part where Wyden notes that NEPA “requires a strong stomach” or something equivalent, somehow I couldn’t find it when I went back..

There’s a great deal to think about here.. I am not as sanguine as the Chief about large landscape NEPA. If someone wants to, couldn’t they go to court after a big blow down or fire (or new climate models or ???) and ask for a redo on the basis of new information and changed conditions? Fundamentally, it would require a change with some folks giving up power, which people usually don’t do voluntarily. Especially those who really believe that they have the right perspective.

The Black Hills doesn’t have any of those ESA animals which are involved in all the Montana and other lawsuits.. is that a coincidence? Perhaps not as applicable as a person might think. I feel like the Administration likes to think things will be fine if collaboration is done and they do huge NEPA. I am a fairly optimistic person but I don’t see that changing, say, Mr. Garrity’s view on the couple of R-1 timber sales because the NEPA is at a larger scale.

The pilots have a great deal of attention and support, in terms of getting various barriers out of the way. Even if the pilots are successful, this does not necessarily predict that everyday kinds of work will be equally successful. My optimism tells me that we would get further by determining what the real barriers to active forest management are.

Anyway, there’s a lot here. What’s your favorite quote? Did you want to hug anyone?

New Study Shows the Value of Active Forest Management

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Yes, we have already seen what happens with a hands-off, “whatever happens” strategy.

P9094831-web

I haven’t read the article all the way through but, this appears to solidify the importance of managing our forests, and the fire dangers within. The are four entire pages of citations, plenty of pictures and some very convincing common sense recommendations that use site-specific science. The picture above is from a roadside treatment along the local Highway 4 corridor. This treatment extends for many miles along the highway, making this “ignition zone” much more fire resistant than it was. Also evident in this picture is the lack of old growth beyond the “Roadside Zone”, a remnant of logging practices in the last millennium.

http://www.calforests.org/wp-content/uploads/2013/06/The-Efficacy-of-Hazardous-Fuel-Treatments.pdf

Let us hope that the warnings are heeded and solutions are implemented with site-specific science. However, I would VERY much like to see a current view of that picture of fire intensities near Alpine, Arizona. I’m sure it would show increased amounts of bug trees outside of the firelines. Certainly, wildfire effects persist for MANY years, even outside of the firelines. I have seen it happen multiple times, in multiple places.

Supreme Court Affirms Programmatic EIS for Sierra Nevada Framework

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Burney-Falls-poster-web

Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565.Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, “This court’s opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012), is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote onwhether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied.”

According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, “The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians.” On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

The Appeals Court rules, “Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.”
In a lengthy dissenting opinion, one Justice concludes, “. . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . .”
It appears that an impossibly comprehensive study of the entire Sierra Nevada “watershed” will not be required for the amended Sierra Nevada Framework plan. If the Forest Service loses this case, it would have to limit the harvest of trees within thinning projects to 12″ dbh in some areas, and to 20″ dbh in the rest of the Sierra Nevada. This decision means that the Forest Service has followed NEPA law since the amendment has been in force. If the Pacific Rivers Council had prevailed, we would be seeing a complete failure of the Forest Service’s timber management program throughout the Sierra Nevada. Sierra Pacific Industries has plenty of their own lands, stocked with plenty of trees in the 12″-20″ dbh size. There would be no need for SPI to bid on the thinning projects that would be offered by the Forest Service under the old diameter limits. The small amount of harvested trees between 20″ and 29.9″ dbh are what pays for the biomass removal needed for true restoration. When thinning projects reduce wildfire threats, and actual wildfire impacts, water quality and fish habitats are improved.