Litigation

Supreme Court to Take on Plan NEPA

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Below is an excerpt: Pacific Rivers Council Cert Reply is a link to a legal document I think submitted to the Court by DOJ, the questions that the Justices will consider. Thanks to readers for sending both. Lawyers on the blog are invited to explain more..
If someone has the link, please send and I will update.

The Supreme Court agreed today to review the standing of an environmental group challenging a Forest Service management plan for the Sierra Nevada.

At issue is a 9th U.S. Circuit Court of Appeals ruling for the Pacific Rivers Council that invalidated a regional management plan for 11 national forests covering 11.5 million acres.

The council successfully argued in appeals court that the Forest Service’s 2004 revised environmental impact statement and framework failed to comply with the National Environmental Policy Act for assessing potential damage to fish species.

The case dates back to the mid-1990s, when Congress found habitat in the sprawling Sierra Nevada — home to 61 fish species and 35 amphibian species — had become severely degraded. It directed the Forest Service to develop a new environmental impact statement for the service’s 11 management plans.

After years of delay, the Clinton administration issued a final statement to conserve and repair aquatic ecosystems in November 2001.

The George W. Bush administration re-examined the statement and in January 2004 issued revisions. According to court documents, the new document made significant changes, including “substantially” increasing total acreage to be logged and the size of trees that could be harvested.

It also paved the way for new logging roads and reconstruction of existing roads and reduced grazing restrictions for commercial and recreational livestock.

The Pacific Rivers Council brought a lawsuit in May 2005 contending that the revised framework did not analyze the environmental consequences of those changes and, therefore, did not comply with NEPA for fish and amphibians.

At issue for the court is whether the environmental group has standing to bring the lawsuit: In other words, could the group prove it was harmed by the agency’s action.

The San Francisco-based 9th Circuit in a February 2012 ruling said the group has standing. They “have used, and will continue to use, the national forests of the Sierra in a variety of places and in a variety of ways,” 9th Circuit Judge William Fletcher wrote. The court held that the 2004 framework didn’t comply with NEPA for fish but did for amphibians.

In asking the Supreme Court to take the case, the Forest Service argued that the environmental group failed to meet that bar.

Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.

The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.

Here are the issues:

United States Forest Service v. Pacific Rivers Council, 12-623

Issue: (1) Whether respondent Pacific Rivers Council (PRC) has Article III standing to challenge the Forest Service’s 2004 programmatic amendments to the forest plans governing management of 11 Sierra Nevada Forests when PRC failed to establish that any of its members was imminently threatened with cognizable harm because he or she would come into contact with any parcel of forest affected by the amendments; (2) whether PRC’s challenge to the Forest Service’s programmatic amendments is ripe when PRC failed to identify any site-specific project authorized under the amended plan provisions to which PRC objects; and (3) whether the National Environmental Policy Act required the Forest Service, when adopting the programmatic amendments, to analyze every type of environmental effect that any project ultimately authorized under the amendments throughout the 11 affected forests might have if it was reasonably possible to do so when the programmatic amendments were adopted, even though any future site-specific project would require its own appropriate environmental analysis before going forward.

Wildlife Advocates Sue Feds to Force Long-Awaited Recovery Plan for Canada Lynx

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lynxThe following press release is from the Western Environmental Law Center and a coalition of wildlife advocacy groups, including Friends of the Wild Swan, Rocky Mountain Wild, San Juan Citizens Alliance, and the Biodiversity Conservation Alliance. -mk
 

Missoula, MT – The Canada lynx was listed as threatened with extinction under the Endangered Species Act (ESA) in March 2000, yet the U.S. Fish and Wildlife Service has yet to complete the required recovery plan to ensure the survival of the elusive cat.

Today, a coalition of wildlife advocacy groups dedicated to the long-term survival and recovery of lynx filed a lawsuit to compel the Agency to complete a recovery plan to bring the species back from the brink of extinction. Threats to the lynx include loss of habitat and connectivity from improper forest management, development, and climate change, and mortality from starvation, predation, poaching, and incidental trapping.

The goal of the ESA is to prevent the extinction of and to provide for the eventual de-listing of imperiled species. As such, the U.S. Fish and Wildlife Service is required to adopt and implement recovery plans for all listed species that describe the specific actions needed to achieve de-listing, include measurable criteria, and estimate the time and costs required to achieve recovery goals.

“Recovery plans are one of the most important tools to ensure a species does not go extinct,” said Matthew Bishop, an attorney with the Western Environmental Law Center in Helena who is representing the wildlife advocacy groups in the case. “The ESA-mandated plan provides a road map to eventual de-listing by laying out what needs to happen and how best to get there,” added Bishop.

“Lynx will never fully recover in Montana and throughout the rest of their range in the lower 48 states until state and federal agencies have coordinated, concrete conservation actions designed to promote their recovery,” said Arlene Montgomery, Program Director of Friends of the Wild Swan. “Recovery plans are vital to ensuring that lynx not only persist, but thrive. They address the threats and provide the strategy that will lead to recovering lynx that builds upon the Endangered Species Act listing and designation of critical habitat.”

“Offering the Canada lynx protection under the Endangered Species Act absent a Recovery Plan, the Service merely created a paper tiger,” explained Duane Short, Wild Species Program Director for Biodiversity Conservation Alliance. “Its legal obligation to develop and implement a Recovery Plan is intended to produce meaningful actions that will actually enhance long-term survival of the species. Listing the lynx as Threatened under the Act, absent a Recovery Plan, is a job left undone.”

“The lynx’s recovery continues to be hampered by a ‘business as usual’ mentality from the federal and state agencies,” added Bishop. “Recent data suggests the lynx population in Montana may be in decline and yet, we’re still seeing development, trapping and snaring, roads, and industrial logging projects – including clear cuts – in some of the last remaining areas still occupied by lynx, including protected critical habitat” said Bishop. “Coordination among the various entities at the federal, state, and local level is needed to address the cumulative effects of these activities on lynx and their habitat. This is exactly what a federal recovery plan can do.”

The Western Environmental Law Center is representing Friends of the Wild Swan, Rocky Mountain Wild, San Juan Citizens Alliance, and the Biodiversity Conservation Alliance.

Broads Can’t Fit Through Narrow 9th Circuit Gate

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Here’s the link and below is an excerpt.

What I found interesting about this (lost in news tranlation?) was the idea that they could have gone all the way to the Appeals Court without noting “any specific changes that it deems not adequately analyzed.”

Legal experts on this blog. is is really possible that the case got all the way to the appeals court before someone noticed this? There must be more to this story…

Four years later the agency issued a decision and an Environmental Impact Statement (EIS) on a plan to restore the road, and Great Old Broads filed a new challenge to the project in federal court. The group alleged that the project design violated the National Forest Management Act, the National Environmental Policy Act and other laws.
Finding that Great Old Broads had failed to exhaust its administrative remedies before filing the action, the District Court granted the Forest Service summary judgment. Great Old Broads went back to the 9th Circuit on appeal but came up empty-handed Monday.
A three-judge panel disagreed with the lower court as to exhaustion, but nonetheless found that the group’s claims failed on their merits.
“Great Old Broads points to no specific changes that it deems not adequately analyzed in the final EIS,” Ronald Gould wrote for the San Francisco-based court.

Judge rules in favor of U.S. Forest Service

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If people want federal agencies to not break the law, then the FS is not breaking the law and I can’t see that the lawsuit has helped that to happen, but maybe I’m missing something.

Here’s the link, and below is an excerpt.

In a Friday ruling, District Judge Owen Panner said the Forest Service is complying with laws because it has agreed not to thin in areas that have a special designation as “restricted riparian” land.
On land labeled “restricted watershed,” the Forest Service plans to do helicopter logging, which will cause minimal impact to the soil, according to new testimony in the case from Don Boucher, the Forest Service’s project manager.
Any exposed soil will be promptly covered with slash from thinning operations, Boucher said.
Panner said those adjustments to avoid “restricted riparian” land and cover exposed soil in “restricted watershed” areas are allowed.
In 2012, U.S. Magistrate Judge Mark Clarke had ruled against Navickas and Lininger on other claims regarding the project, but had upheld their claim that the project could expose too much soil, which could lead to erosion.
On Monday, Navickas said he was disappointed that Panner did not uphold the previous decision.
Navickas said he doesn’t think that scattering branches from thinning operations on exposed soil protects the soil as much as leaving standing trees intact.
“The Ashland watershed is for water production. It’s not timber resource land,” he said.
Navickas said he and Lininger plan to appeal to the 9th U.S. Circuit Court of Appeals.
The city of Ashland and the Nature Conservancy are partners with the Forest Service on the Ashland Forest Resiliency Project.
Last week, the City Council approved passing up to $975,000 in federal economic stimulus money to Columbia Helicopters to do thinning work on Forest Service land in the watershed as part of the project.
The council also approved a contract of up to $335,000 — also funded by stimulus dollars — for Columbia Helicopters to thin the Winburn Parcel, a 160-acre, city-owned island of forested land in the middle of the watershed.

Also, I didn’t know that there was a legal concept that any treatments must protect the soil during the treatment as much as not treating. I thought you just had to describe the impacts during NEPA.

He doesn’t think that scattering branches from thinning operations on exposed soil protects the soil as much as leaving standing trees intact.

It seems fair to me that federal court and Forest Service costs be claimed from the plaintiffs. It should be easy to calculate, after all, everyone’s salary is public information. A side benefit is that we would actually learn the costs.

Feds oppose environmental group’s request for $1.4 million in legal fees

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Here’s the link…

Below are a couple of excerpts..

The federal government is opposing an environmental group’s request for nearly $1.4 million in attorney fees stemming from a lawsuit over grazing in eastern Oregon.
The request is “prodigious” and “excessive” because the environmentalists have exaggerated their victories and inflated the amount of time they spent on the lawsuit, according to the government.
The Oregon Natural Desert Association challenged cattle grazing in the Malheur National Forest, claiming the practice was harming threatened steelhead.
Last year, ONDA reached a settlement with the U.S. Forest Service in which the agency admitted the group won several points of law during nearly a decade of litigation.
The group is now seeking about $1.4 million in compensation under federal laws that allow plaintiffs to recover their costs when they succeed in certain types of lawsuits against the government.

Maybe someone who understands this can help…
OK, so I get why their expenses are involved, but how does “exaggerating their victories” affect the taxpayer bottom line? Is it that if they win 1 of 3 counts, they get 1/3 of their expenses paid?

And

According to a litigation expert with the Forest Service, ONDA also wants to bill the government at premium rates for “work that does not require specific environmental expertise,” like scheduling.
For example, Becker seeks $315-$350 per hour for duties for which attorneys usually receive about $170-$185 per hour under federal law, the government said.
A Capital Press call seeking comment was not immediately returned.
Ranchers who were involved in the litigation have already settled their claims for attorney fees with the government. Last year, the government agreed to pay the ranchers $120,000 in attorney fees and costs.
A judge agreed that the federal government should have included them in the consultation process that determined how grazing affected protected species.

Again, there must be a story as to why the grazing folks were left out of the consultation process. I’m sure some random FS person didn’t wake up one morning and say, “hey, I know we should include them, but let’s leave them out!”

Region 1 Annual Year in Review

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Here’s the link:

This article shows some of the numbers we have been interested in..

“We’re a relatively small player in overall forest dynamics,” said Gene DeGayner, the region’s director of renewable resource management. “This year, we’ll treat with commercial timber sales about 12,000 acres a year, regionwide. We’ll do maybe another 8,000 acres of pre-commercial thinning.
“But we’re looking at 6 million acres of beetle kill. Last year, we had more than 1 million acres burned. What we can affect with mechanical treatment is 1 percent of 1 percent of the region. We are a small player. We cannot move the needle on a lot of these issues.”

The 2012 Year in Review publication released last week on the Internet features 24 pages of stories of projects, awards and accomplishments in Region 1. In its introduction, Regional Forester Faye Krueger invited readers to “look at this publication as the bridge to how much more we can accomplish in 2013.”
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The agency cast a somewhat bigger shadow in less labor-intensive efforts like noxious weed management and prescribed burning. But DeGayner said a large chunk of its expected timber harvest stalled in lawsuits challenging the Colt-Summit forest restoration project near Seeley Lake.

That project was the keynote of the Forest Service’s latest tactic for getting stuff done in the woods: the Collaborative Forest Landscape Restoration Program. These pilot projects got special funding from Congress to see if a combination of including community members in the planning, bartering timber for restoration work, and seeking matching funds from state or private sources might speed up workflow.
In Region 1, CFLRP provided about $9 million in operating funds, which was to be matched 1-to-1 in partnership agreements. The biggest local effort was the Southwestern Crown Collaborative, to do logging and landscape restoration in the Lolo, Helena and Flathead national forests. It claimed credit for producing 32 million board feet of sawlogs, 18,834 acres of noxious weed treatment, 19 miles of stream restoration and 268 miles of trail maintenance between 2010 and 2012. It’s allocated $4 million a year in CFLRP funding for 10 years.
“We’ve got a good portion of that program tied up in litigation, but we hope to prevail on those this year,” DeGayner said.

A federal district judge ruled in favor of the Forest Service on nine of 10 claims, but ordered it to provide more explanation how the project might affect threatened lynx habitat. DeGayner said that extra paperwork would not change the size or scope of the project.

The other main way the Forest Service cut trees last year was through travel safety projects that clear beetle-killed stands along roads. In 2012, it tallied about 500 miles of easement clearing, which paid for itself by the sale of timber.

Here’s a link to the press release from Region 1, but there is a warning that it is a large file. The actual link to it is imbedded from the press release page.

The “Argument Culture” and Public Lands Controversies

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booksAs frequent readers know, I am always interested in who is empowered by certain framings and approaches to issues, and who is disempowered. I was wondering one day, whether solving problems through litigation was more attractive to some kinds of people than others. I developed the hypothesis, based on my own observations, that “warfare” analogies might be more attractive to one gender than to the other. While exploring this, I ran across an interesting essay by Deborah Tannen linked here from 1998:

Below are some excerpts:

Balance. Debate. Listening to both sides. Who could question these noble American traditions? Yet today, these principles have been distorted. Without thinking, we have plunged headfirst into what I call the “argument culture.”

The argument culture urges us to approach the world, and the people in it, in an adversarial frame of mind. It rests on the assumption that opposition is the best way to get anything done: The best way to discuss an idea is to set up a debate; the best way to cover news is to find spokespeople who express the most extreme, polarized views and present them as “both sides”; the best way to settle disputes is litigation that pits one party against the other; the best way to begin an essay is to attack someone; and the best way to show you’re really thinking is to criticize.

Italics above are mine..

THE ARGUMENT CULTURE SHAPES WHO WE ARE

The argument culture has a defining impact on our lives and on our culture.

• It makes us distort facts, as in the Nancy Kerrigan-Tonya Hard-ing story. After the original attack on Kerrigan’s knee, news stories focused on the rivalry between the two skaters instead of portraying Kerrigan as the victim of an attack. Just last month, Time magazine called the event a “contretemps” between Kerrigan and Harding. And a recent joint TV interview of the two skaters rein¬forced that skewed image by putting the two on equal footing, rather than as victim and accused.

• It makes us waste valuable time, as in the case of scientist Robert Gallo, who co-discovered the AIDS virus. Gallo was the object of a groundless four-year investigation into allegations he had stolen the virus from another scientist. He was ultimately exonerated, but the toll was enormous. Never mind that, in his words, “These were the most painful and horrible years of my life.” Gallo spent four years fighting accusations instead of fight-ing AIDS.

• It limits our thinking. Headlines are intentionally devised to attract attention, but the language of extremes actually shapes, and misshapes, the way we think about things. Military metaphors train us to think about, and see, everything in terms of fighting, conflict and war. Adversarial rhetoric is a kind of verbal inflation—a rhetorical boy-who-cried-wolf.

• It encourages us to lie. If you fight to win, the temptation is great to deny facts that support your opponent’s views and say only what supports your side. It encourages people to misrepresent and, in the extreme, to lie.

END THE ARGUMENT CULTURE BY LOOKING AT ALL SIDES

How can we overcome our classically American habit of seeing issues in absolutes? We must expand our notion of “debate” to include more dialogue. To do this, we can make special efforts not to think in twos. Mary Catherine Bateson, an anthropologist at Virginia’s George Mason University, makes a point of having her class compare three cultures, not two. Then, students are more likely to think about each on its own terms, rather than as opposites.

In the public arena, television and radio producers can try to avoid, whenever possible, structuring public discussions as debates. This means avoiding the format of having two guests discuss an issue. Invite three guests—or one. Perhaps it is time to re-examine the assumption that audiences always prefer a fight.

Instead of asking, “What’s the other side?” we might ask, “What are the other sides?” Instead of insisting on hearing “both sides,” let’s insist on hearing “all sides.”

We need to find metaphors other than sports and war. Smashing heads does not open minds. We need to use our imaginations and ingenuity to find different ways to seek truth and gain knowledge through intellectual interchange, and add them to our arsenal—or, should I say, to the ingredients for our stew. It will take creativity for each of us to find ways to change the argument culture to a dialogue culture. It’s an effort we have to make, because our public and private lives are at stake.

Here’s another piece where Dr. Tannen describes her own experiences:

The roots of our love for ritualized opposition lie in the educational system that we all pass through. Here’s a typical scene: The teacher sits at the head of the classroom, pleased with herself and her class. The students are engaged in a heated debate. The very noise level reassures the teacher that the students are participating. Learning is going on. The class is a success.

But look again, cautions Patricia Rosof, a high school history teacher who admits to having experienced just such a wave of satisfaction. On closer inspection, you notice that only a few students are participating in the debate; the majority of the class is sitting silently. And the students who are arguing are not addressing subtleties, nuances or complexities of the points they are making or disputing. They don’t have that luxury because they want to win the argument — so they must go for the most dramatic statements they can muster. They will not concede an opponent’s point — even if they see its validity — because that would weaken their position.

This aggressive intellectual style is cultivated and rewarded in our colleges and universities. The standard way to write an academic paper is to position your work in opposition to someone else’s. This creates a need to prove others wrong, which is quite different from reading something with an open mind and discovering that you disagree with it. Graduate students learn that they must disprove others’ arguments in order to be original, make a contribution and demonstrate intellectual ability. The temptation is great to oversimplify at best, and at worst to distort or even misrepresent other positions, the better to refute them.

I caught a glimpse of this when I put the question to someone who I felt had misrepresented my own work: “Why do you need to make others wrong for you to be right?” Her response: “It’s an argument!” Aha, I thought, that explains it. If you’re having an argument, you use every tactic you can think of — including distorting what your opponent just said — in order to win.

Staging everything in terms of polarized opposition limits the information we get rather than broadening it. For one thing, when a certain kind of interaction is the norm, those who feel comfortable with that type of interaction are drawn to participate, and those who do not feel comfortable with it recoil and go elsewhere. If public discourse included a broad range of types, we would be making room for individuals with different temperaments. But when opposition and fights overwhelmingly predominate, only those who enjoy verbal sparring are likely to take part. Those who cannot comfortably take part in oppositional discourse — or choose not to — are likely to opt out.

Here’s a link to her book.

Question: Can you imagine ways to foster a broader approach to resolving natural resource/public lands disputes that are more in line with a dialogue, rather than an argument, culture?

Judge Agrees With Forest Service On Thinning On North Kaibab

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blackjack3

The above are photos of 1) what the stand is desired to look like, and 2) what stands look like when not enough 16 inchers have been removed. At least that is my interpretation of the photos in the EA here. If I misinterpreted, please feel free to point it out.

Here is the link and below is an excerpt:

The area in question is about 39 square miles located near Jacob Lake, or north of the 40,000 acres accidentally burned in 2006’s prescribed-burn-turned-wildfire on the North Kaibab Ranger District, called the Warm fire.

It’s a defeat for the Sierra Club and Center for Biological Diversity, which have raised objections over the age and size of trees to be thinned since 1998.

Those groups asserted that the scale of thinning the Forest Service had proposed on the Kaibab Plateau is not beneficial to the northern goshawk, a bird the forest service considers a “sensitive” species (not federally listed as threatened or endangered), and submitted data to support that view.

The Forest Service weighed that data, then set it aside in favor of what its own expert had said about how dense or sparse the forest could be in areas where the goshawk live.

The plans allow for logging of ponderosa pines 16 inches and larger in diameter (with no upper size limits), though the Forest Service says it will only account for fewer than 2 percent of the trees to be cut.

The matter is potentially significant because the conservation groups have raised objections to similar plans for a handful of other thinning projects on national forests elsewhere in northern Arizona, including closer to Flagstaff.

“It makes no sense for the Forest Service to continue to push to log these old growth and large trees, when we have so little remaining. This is not a restoration project. It is a squandering of these biologically significant large trees — critical and missing components in many of our forests,” stated Sandy Bahr, of the Sierra Club.

The district forester lauded the decision.

“Thanks to the hard work and perseverance of our employees, and support from our local communities, we can move forward to help protect the habitat and the forest from high intensity wildfire,” stated North Kaibab District Ranger Randall Walker.

Note from Sharon:
1) I am curious whether this is the same project as in this story here” Group Sues to Stop Thinning Project near the Grand Canyon.”

And only a small percentage of the forest’s old-growth trees will be removed, he added.
I anticipate that some critics of my decision may mischaracterize this project with claims that it will significantly reduce old growth habitat,” Short wrote in the assessment. “Alternative 1 would reduce old growth by up to 105 acres within the 26,916 acre Jacob-Ryan project area. This equates to approximately 0.4 percent change in old growth allocation.”

Loggers would cull old-growth trees only where it would be necessary to promote restoration goals, according to the agency.

However the same story also says…

Under the proposal, about 700 acres of mature and old-growth ponderosa pines would be harvested.

39 square miles? 700 acres? 105 acres? This seems very confusing.

I sure think it would be interesting if, for each project that goes to litigation, the unit would develop a standard video package that shows 1) what the area currently looks like, 2) explains why they are doing what they are doing, 3) show how they would do the marking, and then 4) show what nearby areas look like after that treatment. There was some of that done in this EA, but I think a video showing what trees would be removed and why would be clearer. It would be helpful for folks on this blog, and other members of the public and the media to understand and compare. It would also be interesting to know how much the FS, OGC and DOJ spent defending this one (39 square miles, or 150 or 700 acres, whatever..) compared to the 150 acre and 600 acre projects we’ve talked about on this blog before. We could even then generate a litigation cost per acre..

Here’s a letter to the editor by the ranger describing the project and the FS side..Good work by the FS, OGC and DOJ on the case, and the District for the EA and getting the word out.

Whitebark Lawsuit II

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Matthew posted this link last week about the whitebark ESA lawsuit.

Now, I asked the question “why?” and “what conditions does Mr. Garrity want changed”?

Matthew replied that I need to read the lawsuit. I don’t think that’s quite fair, as when I am supporting the FS point of view, I don’t think I’ve ever asked anyone to “read the EIS.” The fact is, if you are supporting something, I think it it incumbent on the supporter to pick out the pieces of the document that make the argument. Of course, folks litigating are not required to do public outreach to get public understanding, acceptance and support for their actions; and neither can the USG really once a topic has fallen under the litigation Cone of Silence (link here.. notice that that post was also about trying to figure out “what are the actions that you want changed?” with the very same Mr. Garrity). So I guess it falls upon us volunteers to have this kind of public discussion. I do believe that there must be a better way.

So I did not read the whole thing, because I tend to find the snarky and self-righteous vibe of the writing of many lawsuits to be sandpaper to my soul, but I did find this tidbit:

An actual controversy exists between Plaintiffs and Defendants. Plaintiffs’ staff, members, and supporters derive scientific, aesthetic, and spiritual benefits from whitebark pine’s continued existence in the wild and from the ecosystems upon which it depends. They use and enjoy lands throughout the range of whitebark pine, including regular and consistent use and enjoyment
of federal public lands in the Northern Rockies, including National Parks and National Forests in Montana, Idaho, and Wyoming. The majority of whitebark pine in the U.S. occurs on National Forest and National Park lands. Plaintiff Alliance for the Wild Rockies is already involved in other federal
litigation in this Court to protect whitebark pine on National Forest lands in Montana. See e.g. Alliance for the Wild Rockies v Krueger, CV-12-150- DLC (D. Mont.) (Challenging the Cabin Gulch Project on Montana’s Helena National Forest, in part for approving clearcutting of hundreds of acres of
whitebark pine habitat without first considering the best available science on whitebark pine habitat management). Plaintiffs’ staff, members, and supporters use whitebark pine habitat for hiking, fishing, hunting, camping, photographing scenery and wildlife, and engaging in other vocational, scientific, spiritual, and recreational activities. Plaintiffs’ staff, members, and supporters observe, study, and enjoy whitebark pine, and intend to continue to observe, study, and enjoy whitebark pine frequently and on an ongoing basis in the future.

Based on that, it sounds like the problem is with clearcutting for WBP. Since last week I was able to contact my scientific colleagues who work on WBP. Here is a quote:

I’m not aware of any clearcutting with WBP. We certainly don’t do it here and I haven’t heard about any in other regions. We DO cut in WBP stands, but the intent is to remove competing vegetation, mostly conifers. There’s a chance that a dead or very sick WBP may be cut in order to provide growing room for a younger, healthier tree, but clearcutting WBP makes no sense.

This made me curious about the Cabin Gulch project.
Here is what I found by searching for WBP in the ROD here:

Regeneration harvests on approximately 417 acres of which approximately 286 acres target
whitebark pine establishment. These harvests will be done where a substantial portion of the
overstory was lodgepole pine that has been killed by mountain pine beetle and the establishment
of regeneration is desired. This harvest activity will result in 2-aged, or even-aged stands
depending on how many healthy trees are available for retention, primarily Douglas-fir. In these
treatments, the existing stand is largely replaced and the resulting stand is dominated by
regeneration. Lodgepole pine, Douglas-fir, and/or whitebark pine natural regeneration is expected
depending on the unit. Diameters cut would generally range from 7 – 16” DBH and live trees of
other species would be retained to provide seed, structure and snag recruitment.

So it sounds like they are taking off dead lodgepole to give WPB regeneration a chance to grow? That sounds different than “clearcutting hundreds of acres of wpb habitat”? Is it better to let the dead lodgepoles fall? Could that result in jackstrawed lpp which would then cause fires to burn hotter and turn the WBP regen into crispy critters?

When folks talk about the “best science” it reminds me that all of us can go out to a site and look at WBP, fires, fuel loadings and treatments. We don’t need a Large Hadron collider and billions of bucks to observe this phenomenon.

The interesting thing about the WPB issue is that we all want the same thing, putatively, to protect WBP as much as is possible that would be effective under changing climate conditions. No sawmills run off WBP, and it’s often in roadless or wilderness areas, or national parks. So the rationale seems more mysterious than most lawsuits.

Matthew also said in his comment here:

Furthermore, in the section of its July 2011 decision where the USFWS lists the “high Priority Listing Actions” that will receive funding for listing in the FY 2010 or 2011 – instead of whitebark pine – the USFWS lists 39 species with Listing Priority Numbers between 3 and 12. In other words, species with LPN between 3 and 12 do not face greater threats than whitebark pine, which has a LPN of 2.

The lawsuit continues to go into lots of details about where the agency is currently spending it’s money and time and how 40% of the funding in FY 2010/11 actually went to species that have a lower priority than whitebark pine. Again, I’d encourage people to read the actual lawsuit, view all the info and then ask questions. Because having me simply re-type what’s in the lawsuit here isn’t really a homework assignment I should be doing for you. Thanks.

This part sounds to me like management of FWS and where they put their priorities and funding, and why. Again, it seems like reasonable people could disagree about any federal agency, and where it puts its priorities. I would prefer to see our federal agencies managed by folks with recommendations from a public FACA committee rather than by a few lawyers in a non-public forum, settling a lawsuit.

The Saga of Colt Summit Continues: Opportunity for Direct Action?

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Just when you think it might be done, because it went to court and the judge told the FS to analyze more and the FS did…

Maybe it’s time for some of the direct action proposed earlier on this blog. Here’s a link to the members of the Western Environmental Law Center Board of Directors. If I were one of the collaborators on the project, or any knowledgeable person in the area who supports the project (especially those with environmental street cred), I might organize with my collaborators to call them up, and invite each one to talk about your opinion of what action they should pursue, or maybe take a tour with the FS and the collaborators of the project area, plus some nearby areas that have had similar treatments to get an idea of what the completed project would look like.

My personal curiosity is why of all the possible environmental problems in the world, including in the interior West, they chose to spend energy, their funds, and your tax dollars litigating 597 acres of commercial thinning and underburning near Seeley Lake, Montana. Well, maybe based on the yarding acres there will be 706 acres commercially treated.. still..

As we’ve discussed on this blog, there are fuel treatment projects everywhere in the West (and south). Why of all of them… this one? Is it some kind of Montana thing? But who is from Montana? Doesn’t look like any of the board members.

Also, the news stories keep calling it a 2,038 acre “logging project” which is a bit of a summary.. but I don’t think the broadest category of “logging” would include “understory slashing and prescribed fire”. So is it really accurate to call it a 2,038 acre “logging project” or more accurate to call it a 2,038 acre fuels reduction project with 706 acres of logging? (People who work on this project: ifyou read this blog could you please send me the correct number of “logged” acres?) Note that the acres that would be logged were reduced by over 50% based on public comment.

Here’s the link and below is an excerpt.

MISSOULA — The U.S. Forest Service says it has successfully answered a federal judge’s legal questions involving a 2,038-acre proposed logging project in the Lolo National Forest about 10 miles north of Seeley Lake.

Lolo National Forest Supervisor Debbie Austin last week wrote there was no need for additional information about the Colt Summit Project proposed in 2011. The decision opens the way for work to start this summer.

“I have found no reason to further supplement, correct or revise my March 25, 2011, decision,” she said.

Four conservation groups — Friends of the Wild Swan, the Alliance for the Wild Rockies, Montana Ecosystems Defense Council and Native Ecosystems Council — sued in September 2011 to stop the project, saying it would harm lynx, bear and trout habitat.

U.S. District Judge Donald Molloy last June knocked down most of the plaintiffs’ claims and said the Forest Service properly studied the project’s effects on lynx and grizzly bears. The exception was the claim that the Colt Summit Project analysis violated the National Environmental Policy Act by not studying the cumulative effects of the project on lynx, a threatened species. The judge sent that portion of the proposal back to the Forest Service for further consideration.

Austin in August submitted a supplemental environmental assessment for public review and comments to address those concerns about lynx, which she said clears the way for the project to continue.

Western Environmental Law Center attorney Matt Bishop, who represented the environmental groups, said he was disappointed Austin didn’t issue a new environmental assessment but chose to reaffirm the old one. He said he needed time to review Austin’s decision before the conservation groups could consider their next move.