Litigation

DU Law Students and Handkerchief Mesa

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Matthew Koehler sent this one in, and I can’t say anything about this project due to the litigation cone of silence. Suffice it to say that there are two sides. I wish more law students would volunteer for proactive (I think the legal term is affirmative) litigation for the government, say trespass cases, water rights, etc. IMHO it would be a better deal for the taxpayer.

Students at the University of Denver’s Sturm College of Law representing two regional environmental nonprofits successfully blocked a federal timber permit that would have allowed logging in the Rio Grande National Forest near Alamosa in southern Colorado.

U.S. Judge William Martinez in U.S. District Court for Colorado ruled Thursday that the U.S. Forest Service did not meet obligations spelled out in the National Forest Management Act and that an Environmental Assessment was inadequate.

“The court finds fault with the Forest Service’s failure to lay out a more detailed plan regarding … soil compaction. The court finds even greater fault with simply identifying the fact that mitigation measures exist, without even mentioning what those mitigation measures are, not to mention how and when they might be used,” Martinez said in his ruling regarding soil and regeneration issues.

The ruling overturns issued timber permits for more than 3,436 acres in the Handkerchief Mesa area of the Rio Grande National Forest. Permits would have also allowed for the construction of 11 miles of roads.

The suit against the Forest Service and its parent agency, the U.S. Department of Agriculture, was prepared in June 2009 by DU student Jacob Schlesinger and Environmental Law Clinic fellow Ashley Wilmes under the direction of DU Environmental Law Clinic director Michael Harris.

It was filed in federal court in Denver on behalf of environmental groups Rocky Mountain Wild based in Denver and Durango, and WildEarth Guardians, based in Santa Fe.

DU student lawyers Mason Brown and Justine Shepherd argued the case in federal court in December 2011 under a provision that allows students to practice in federal court while supervised by a licensed attorney.

The case argued timber cutting would affect lands stressed by previous clear-cutting and an ongoing spruce budworm infestation.

Allowed to proceed, the proposal could lead to continued soil damage, including erosion and compaction, impacting the flow of water to the Rio Grande and thousands of communities downstream, according to a DU press release.

Runoff from the area feeds the headwaters of the Rio Grande river, which is a major source of drinking water for millions of people in Colorado, New Mexico and Texas, and provides water for agriculture in both the United States and Mexico.

Harris said stopping a permitted timber project in Colorado is “extremely rare.” The ruling, he says, sends a message to the Forest Service that its permitting process must take into account changing conditions, ongoing insect infestations and other ecological conditions.

“The court has told the Forest Service, the game has changed, and you need to change with them if you are going to continue to permit these projects,” Harris said in the press release.

Martinez ordered the Forest Service to “analyze anew, on remand, whether the project will significantly affect the quality of the human environment.”

A Look at Judge Smith’s Dissent on Sierra Framework Case

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One good thing about the recent case is that because there was a dissenting judge (33% of total) we get to hear “both sides of the story” in the case. It sounds like the FS said that analyzing site specific projects impacts on fish made more sense than at the programmatic level. As I’ve said before, it’s hard to analyze impacts when you don’t know if, where, or when you will do a project, nor how it will be done. Judge Smith even quoted some similar thinking from the FEIS in his dissent, which I italicized below.

To analyze it more broadly, you have to make a host of assumptions, which are pretty much predicting the future. The best available science on our predictions of what will happen suggests that we are not too good at it. If we have a bad track record, making those assumptions and doing that analysis is not particularly enlightening or useful, and to some extent is a waste of taxpayer dollars compared to analysis when the details are known. One of the problems with having this debate- “how much and why”
about analysis – through court cases, is that it is never actually debated… judges have opinions and we move on. And as I’ve pointed out before 10th Circuit Roadless and 9th Circuit SNF seem to be going in different directions about site-specificity.

I don’t know if whether a judge is “liberal” or not affects their feelings about this case, as perhaps implied by the Bee reporter. If so, though, we could do a thought experiment about different random combinations of judges and potential outcomes.

The majority did refer to this note:

The Draft was criticized by the staff of the Forest Service’s Washington Office for Watershed, Fish, Wildlife, Air and Rare Plants. The staff wrote a letter complaining that there was no discussion of the effects of the logging and logging-related activities on fish:

Aquatic and Riparian: There needs to be a discussion of the effects of the new alternatives on riparian ecosystems, streams and fisheries. It is not sufficient to dismiss these effects as within the range of impacts discussed in the [2001] framework ․ without further analysis, given the activities proposed in Alternative S2. If the treatments [proposed in Alternative S2] will be sufficient to have their intended effect, there is a high likelihood that there will be significant and measurable direct, indirect and cumulative effects on the environment, which need to be analyzed and disclosed in this document.

To me, the depth of discussion in a programmatic document is really a NEPA question. If every time people wanted more discussion of something in a document and wrote a letter, that was absorbed by the court as a legitimate viewpoint, that would lead us into a even more massive quagmire.As far as I can tell, few people agree about the appropriate level of discussion for any impact, ever. The toggle switch for documentation is inevitably set to more.

Here’s the link to the opinion.
Let’s look at what dissenting Judge Smith says:

Fourth, the majority incorrectly asserts that there is “no explanation” for the Forest Service’s decision to defer more in-depth analysis of individual fish species. See, e.g., Maj. Op. 1027. However, the Forest Service clearly did explain its reasons for deferring in depth analysis until more site-specific projects were identified. Specifically, in its Record of Decision, the Forest Service stated,

Our ability to strategically place fuel treatments for optimum effectiveness has been compromised by the set of complicated rules in the [2001 Framework]. The standards and guidelines in that [Framework] are applied at the stand level, rather than by land allocations․ Some of the rules are so detailed that they prescribe down to one acre what is allowed, and require measuring change in canopy to ten percent increments, which is not consistently practical with existing measurement tools. This fine-scale approach limits our ability to make significant progress. ․ [O]ur ability to strategically place fuels treatments on the landscape has been compromised by the complexity of rules [which allows] ․ more habitat [to be] lost to wildfire․ This decision is intended to reverse that trend.

Record of Decision at 8–9; see also Appellee’s Br. at 6. As a result, the agency explained that the 2004 EIS was being implemented to “assure the most efficient and appropriate use of government resources․” Record of Decision at 23–24. The Forest Service primarily argued not that providing more analysis would be entirely impossible, but rather that “there was insufficient information and analytic tools for a meaningful analysis․” Appellee’s Br. at 48 (emphasis added). Therefore, the majority should have concluded that it was well within the Forest Service’s discretion to determine that the benefits of deferring in-depth analysis of aquatic species to provide more meaningful analysis outweighed any delays in information.

If the Forest Service commits to a site-specific project in the future, without engaging in the required level of NEPA analysis, then Pacific Rivers might have a viable NEPA claim. Indeed, it is likely that “[t]he deficiencies noted by the” majority opinion (regarding analysis of fish) “are precisely the omissions the Forest Service will need to correct in order to comply fully with NEPA” at a later time. Block, 690 F.2d at 763; see also N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 891 (9th Cir.1992) (approving a programmatic EIS that deferred detailed analysis until an application for a mining permit was submitted, but noting that “judicial estoppel precludes the Park Service from later arguing that it has no further duty to consider mitigation measures ․”).

Not only has the Forest Service affirmed many times that they plan to engage in further detailed analysis when specific projects are identified,7 but we have a legal duty to assume that the agency will perform that analysis. In Salmon River Concerned Citizens v. Robertson, we observed that courts should “assume that government agencies will ․ comply with their NEPA obligations in later stages of development.” 32 F.3d 1346, 1358 (9th Cir.1994) (quoting Conner, 848 F.2d at 1448).

B. The amount of programmatic, high-level analysis was sufficient to engage in informed decision-making regarding broad policies affecting all species, including fish.

The majority claims that the Forest Service “entirely failed to consider an important aspect of the problem” by not providing in-depth analysis regarding how the 2004 programmatic Framework would affect specific species of fish. Maj. Op. 1035 (citing Lands Council II, 537 F.3d at 987). But here, because the Forest Service chose to utilize a tiered NEPA analysis structure and implement a programmatic EIS, the relevant scope of “the problem” is whether the Forest Service “provide[d] ‘sufficient detail to foster informed decisionmaking.’ “ Friends of Yosemite Valley, 348 F.3d at 800 (quoting Lujan, 961 F.2d at 890–91). As discussed above, the majority is only able to claim otherwise by ignoring the proper standard of review and refusing to defer to the Forest Service’s discretion in determining the scope of its analysis. See Kleppe, 427 U.S. at 413 (agencies have discretion to “intelligently determine the scope of environmental analysis and review specific actions [they] may take”); Friends of Yosemite Valley, 348 F.3d at 800 (“[A] reviewing court [must] focus upon a proposal’s parameters as the agency defines them”) (alteration in original omitted) (quoting Block, 690 F.2d at 761). The scope of analysis in a programmatic EIS can include considerably less detail than in an EIS analyzing a site-specific project. See, e.g., Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993); Salmon River, 32 F.3d at 1357–58; Block, 690 F.2d at 761.

Thus, under the Forest Service’s tiered-analysis approach, the 2004 EIS provides sufficient high-level standards to guide future on-the-ground decisions affecting fish. These standards generally contemplate the relevant range of potential agency action and the consequences on various habitats in the Sierra Nevada. The 2004 Framework “begins by explaining that cumulative effects were analyzed in detail for the eight alternatives considered in the 2001 Framework.” Appellee’s Br. at 50. “It then identifies activities that have occurred” since the 2001 Framework, “including soil and water resource improvements, hazardous fuels reductions, wildfire suppression,” and road construction. Id.

Specifically regarding aquatic habitats (home to fish species), the Framework notes that these are one of the most “degraded of all habitats in the Sierra Nevada,” though much of the original problem was related to “lower elevation dams and diversions.” 1 SEIS at 3. The EIS observed that “[t]he greatest effects on the [a]quatic, [r]iparian and[m]eadow [e]cosystems will generally be from either mechanical fuel treatments or catastrophic wildfires.” Id. at 12, 96. “Fires can have extraordinary effects on watershed processes and, as a consequence, significantly influence aquatic organisms and the quality of aquatic habitats in many ways.” Id. at 208 (citation omitted).

These effects include “reductions in riparian shading and altered streamflows [that] can increase stream temperatures to extreme levels,” “[f]looding, surface erosion, and mass wasting ․ due to vegetation loss,” and “increases in sedimentation, debris flows, and wood inputs may occur” as well as “[c]omplete channel reorganization.” Id.

The Forest Service weighed “tradeoffs between potential aquatic ecosystem and water quality impacts from fuel management activities (mechanical treatment and prescribed fire) and risks associated with high severity wildfires.” Id. (citation omitted). It recognized that “with respect to aquatic ecosystems, there are arguments for and against the use of fuels treatments to reduce the extent and severity of future fires.” Id. (citation omitted). After providing this analysis, the EIS determined “alternatives that lower the risk of fire and have medium levels of treatment pose the least risk to aquatic and riparian system.” Id. at 12. Therefore, by allowing increased fuels treatments, the 2004 Framework would reduce the anticipated acres burned by just over 15% from the 2001 Framework. Id. at 98.

The Forest Service recognized that this approach “pose[d] higher short-term risks to aquatic resources because it prescribes larger amounts of mechanical treatments and greater treatment intensities.” Id. at 12, 97, 215. But the Forest Service concluded that this was mitigated by the expected long-term benefits to aquatic habitats resulting from reducing wildfires. Id. The Forest Service also asserted its intent to reduce any short-term threats through objectives listed in its “Aquatic Management Strategy,” best management practices, and goals related to “landscape-level conditions” and “land allocations” that would be applied during “project level analysis.” Id. at 12, 97, 207, 210, 215. It was reasonable for the Forest Service to defer more specific analysis of the proposal’s effect on aquatic species, because “[p]otential treatment effects on aquatic, riparian and meadow ecosystems are largely a function of the amounts, types, intensities, and locations of treatments and the standards by which they are implemented.” Id. at 210.

Although the majority correctly notes that the 2004 Framework anticipates considerably more logging in the forests, the majority ignores the fact that much of that logging may never occur. For example, 214 million board feet were offered for sale on average between FY 2000–2002, but only 118 million were actually sold—approximately 55%. Id. at 174–75. Similarly, only 58% of the fuel treatments projected under the 2001 Framework were carried out in the first three years of the Framework. Id.; Appellee’s Br. at 22–23. Therefore, the Forest Service reasonably concluded that it would be inefficient to perform a detailed analysis of the impact of activities that may never take place, and the 2004 EIS contains sufficient analysis of the probable consequences of increased fuel management at the programmatic level.

The 2004 Framework identified roads as another “critical component” of the risk and benefit “tradeoffs” to aquatic species, which include fish. 1 SEIS at 209. The EIS explained that roads are just behind wildfires in their potential effect on “aquatic ecosystems and water quality in forested environments.” Id. The EIS cited studies discussing how “roads can deliver more sediment to streams than any other human disturbance in forested environments.” Id. (citation omitted). However, the studies also indicated that “surface erosion from roads can be reduced through improved design, construction, and maintenance practices,” and “[p]roper road location, drainage, surfacing, and cut slope and fill slope treatments are important in limiting effects.” Id. (citation omitted). The Forest Service explained that the proposed “modest reduction in overall road miles, and improved road conditions,” subsequently adopted in the 2004 Framework, were some of “the most important aspects of reducing risks to aquatic resources.” Id. at 215.

The Forest Service determined that, because many details of actual on-the-ground activities were yet unknown, a more detailed analysis would be appropriately conducted when specific projects were identified. For example, the EIS explained that “actual locations and miles of roadwork[will] be determined through project-level planning and analysis.” 2 SEIS at 66. Changing the location of a proposed road by just a few hundred feet could make a substantial difference in the impact it had on riparian areas and on fish. A different location might have significantly different vegetation, soil type, and topography. Changing the location could even place a road in a completely different drainage basin, potentially impacting entirely different species of fish. See, e.g., Biological Assessment for SNFPA SEIS 146, July 30, 2003 (Paiute cutthroat trout found only in 14.5 miles of streams).

The EIS explained that “road management does not vary substantially between [the 2001 Framework and the 2004 Framework]. Under both alternatives, the ․ biological effects of roads, as previously described, would be reduced across the bioregion․” 1 SEIS at 212. The EIS further noted that, under the 2004 Framework, there would be a decrease in the net miles of roads. Id. (under the 2004 Framework, “1175 miles would be decommissioned and 115 miles of new road would be constructed”). Although the miles of reconstructed roads would almost double and may have short-term impacts, reconstructed roads would be expected to “improve water quality and aquatic habitat․” Id.

The 2004 EIS also provided analysis of the effects to watersheds from on-the-ground activity that the Forest Service might permit under the Framework. The Framework explained that, as a broad-based policy, future projects should remain protective of wildlife but strive for more effective reduction of hazardous fuels. See, e.g., Appellee’s Br. at 6, 9, 36, 54. It also identified activities that have occurred since the 2001 Framework, including soil and water resource improvements, hazardous fuels reductions, wildfire suppression, and road construction. Id. at 50. Based on this information, it analyzed combined or synergistic effects of the elements of the 2004 Framework on aquatic ecosystems and species, explaining that the 2001 and 2004 Frameworks are expected to have similar effects, because both alternatives are required to meet soil quality standards. Id. at 47–48.

Similarly, the EIS addressed the impacts of grazing with sufficient detail to satisfy NEPA on a programmatic level. As with logging and road construction, the Framework calls for a flexible approach based on specific conditions, rather than a full-scale analysis at this stage. The same 2001 standards will continue to be in effect and “are expected to reduce erosion of meadows and improve aquatic habitat conditions by facilitating the growth of stabilizing vegetation along streams.” 1 SEIS at 214. The 2001 and the 2004 Frameworks primarily differ in that changes to utilization and stubble heights may be allowed in the 2004 Framework when current range conditions are “good to excellent” (and after “rigorous[ ] evaluat[ion]”). Id. Monitoring requirements under this flexible approach will “minimize[ ] differences in effects on aquatic ․ ecosystems between the [2001 and 2004 Frameworks].” Id.

Thus, after recognizing the general impact that various proposals could have on the environment and the measures that could mitigate those effects in the programmatic EIS, the Forest Service reasonably deferred the detailed analysis of future site-specific projects. Based on this analysis, the Forest Service clearly did not “entirely fail[ ]” to consider an important aspect of the programmatic analysis required to provide informed decision-making. The majority may have preferred more specific analysis about individual fish species, but such preference is not a justifiable reason under NEPA to disregard the agency’s analysis as arbitrary and capricious.

These CEQ guidelines might be also considered from the recent ones put out for public comment:

Concise NEPA Documents
Agencies are encouraged to concentrate on environmental analysis in their EAs and EISs,
not to produce an encyclopedia of all applicable information.16 Environmental analysis should
focus on significant issues, discussing insignificant issues only briefly.17 Impacts should be
discussed in proportion to their significance, and if the issues are not deemed significant there
should be only enough discussion to show why more study is not warranted.18 Scoping,19
incorporation by reference,20 and integration of other environmental analyses21 are additional
methods that may be used to avoid redundant or repetitive discussion of issues.22
All NEPA environmental documents, not just EISs, should be written in plain language,23
follow a clear format, and emphasize important portions of the impact analysis over mere
background material. Clarity and consistency ensure that the substance of the agency’s analysis
is understood clearly, avoiding unnecessary confusion or risk of litigation that could result from
an ambiguous or opaque analysis. The CEQ Regulations indicate that the text of a final EIS that
addresses the purpose and need, alternatives, affected environment, and environmental
consequences should normally be less than 150 pages and a final EIS for proposals of unusual
scope or complexity should normally be less than 300 pages.24
In light of the growth of environmental requirements since the publication of the CEQ
Regulations, and the desire to use the EIS to address, via integration, those requirements, it is
recognized that there will be a range of appropriate lengths of EISs. Nevertheless, agencies
should keep EISs as concise as possible (continuing to relegate relevant studies and technical
analyses to appendices) and no longer than necessary to comply with NEPA and the other legal
and regulatory requirements being addressed in the EIS, and to provide decision makers and the
public with the information they need to assess the significant environmental effects of the action
under review. Length should vary with the number, complexity and significance of potential
environmental problems.

And

Incorporation by Reference
Incorporation by reference is another method that provides efficiency and timesaving
when preparing either an EA or an EIS. The CEQ Regulations direct agencies to incorporate
material into an EIS by reference to reduce the size of the EIS and avoid duplicative effort. An
agency must cite the incorporated material in an EIS and briefly describe the content. An
agency may not incorporate any material by reference in an EIS unless the material is reasonably
available for inspection by potentially interested persons within the time allowed for comment.64

The goal should be to conduct concurrent rather than sequential processes whenever
appropriate. In situations where one aspect of a project is within the particular expertise or
jurisdiction of another agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more efficient.

SacBee on Pacific Rivers Appeal

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You know, I don’t like to unnecessarily partisanize disputes, but I wonder if this additional information provided by the reporter adds value to the story. Compare this story to the E&E news story here. In that story, the administration that appointed only one of the four involved judges is mentioned.

Federal appellate court rejects Forest Service plan for Sierra
http://www.sacbee.com/2012/02/05/4240045/federal-appellate-court-rejects.html

By Denny Walsh
[email protected]
Published: Sunday, Feb. 5, 2012 – 12:00 am | Page 1B

A federal appellate court has struck down as unlawful a 2004 management plan for Sierra Nevada national forests formulated by George W. Bush’s administration, saying it lacks a required analysis of how fish will fare under the plan.
A split three-judge panel of the 9th U.S. Circuit Court of Appeals held the Bush plan up next to a plan put in place in the dying days of Bill Clinton’s administration, pointing out that the earlier plan includes an insightful and viable look at how fish will be affected by its provisions.
The Bush administration took office in January 2001 and immediately began work on its revised plan.
Friday’s circuit opinion reverses U.S. District Judge Morrison C. England Jr. of Sacramento, who sided with the U.S. Forest Service in a 2008 ruling in which he rejected a challenge by the Pacific Rivers Council to the 2004 management plan’s lack of impact analysis regarding fish. The council, an advocacy group that champions aquatic life, contends the 2004 plan is inconsistent with the National Environmental Protection Act and the Administrative Procedure Act.
The panel agreed with the council on fish, but found that the 2004 analysis of effects on amphibians, which the council had also challenged, satisfied the requirements of the acts.
Environmental advocates have challenged a number of aspects of the 2004 plan revision in a series of lawsuits before England, who has consistently ruled in favor of the Forest Service.
The 11 national forests of the Sierra Nevada are home to at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded. “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra,” the study declared.
In 2001, the Forest Service issued a final environmental impact statement (EIS) recommending amendments to the Sierra Nevada Forest Plan that were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. The Clinton administration adopted a modified version of the statement, called the 2001 Framework.
Backed by a new EIS, the Bush administration’s 2004 Framework contains significant changes to the earlier management plan.
Forming the circuit panel majority are Judges Stephen Reinhardt, a liberal appointee of then-President Jimmy Carter, and William A. Fletcher, a liberal appointed by Clinton. Dissenting is Judge N. Randy Smith, a conservative appointed by Bush. England is also a conservative appointed by Bush.
Compared to its predecessor, the 2004 framework allows:
• The harvesting of substantially more timber and bigger trees on more acreage, some near streams and lakes.
• Substantially more construction of new, and reconstruction of existing, logging roads, some near streams.
• Fewer grazing restrictions, some near streams and lakes.
“The 2004 EIS contains no analysis of environmental consequences of these changes on individual fish species in the Sierra,” wrote Fletcher for the majority, contrasting that with more than 100 pages of such analysis in the 2001 EIS. The earlier EIS also included particular environmental risks for individual species of fish.
“There is no explanation in the 2004 EIS of why it was not reasonably possible to provide any analysis whatsoever of environmental consequence for individual species of fish, when an extensive analysis had been provided in the 2001 EIS,” Fletcher wrote. “The failure of the 2004 EIS to provide any such analysis is a failure to comply with the ‘hard look’ requirement of NEPA.”
By contrast, he wrote, “The 2004 EIS contains an extensive analysis of individual amphibians.”
In his dissent, Smith maintains that his colleagues are guilty of “two fundamental errors.”
First, he wrote, by ruling that the Forest Service must make an analysis “as soon as it was ‘reasonably possible’ to do so,” the majority “disregards our circuit’s long-standing precedent holding that an agency’s timing of analysis required by (NEPA) … is not arbitrary and capricious if it is performed before” a commitment to a specific forest project, such as logging or road construction.
“The majority instead creates an unclear rule based on ‘reasonable possibility’ that imposes additional procedures not required by NEPA on the Forest Service.”
Such a rule leaves the agency uncertain as to its legal obligations, invites judicial meddling in the agency’s decision making and invites even more litigation than is already aimed at the agency, Smith declared.
Second, he wrote, “the majority ignores the tiering … created by NEPA.” An EIS created for a framework “focuses on high-level policy decisions (and) requires less detailed analysis than a site-specific EIS.”
“Therefore, agencies are allowed to defer in-depth analysis until site specific projects have been identified.”
Courts “owe a high level of deference to the methodological choices of the agency,” Smith wrote.

Appeals Court on Sierra Nevada Amendments

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Thanks to Matthew Koehler for this one..

FORESTS: Split appeals court orders new environmental study of Sierra Nevada plan

Lawrence Hurley, E&E reporter Published: Friday, February 3, 2012

A federal appeals court today found flaws in a U.S. Forest Service environmental review concerning a management plan for national forests in the Sierra Nevada.

The three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals, splitting 2-1, concluded that the service’s 2004 environmental impact statement had failed to properly analyze how a proposed forest plan would affect fish as required under the National Environmental Policy Act (NEPA).

In dissent, Judge N. Randy Smith said the majority had departed significantly from the circuit’s NEPA precedent.

The court rejected a second claim made by the Pacific Rivers Council that the government had not adequately addressed the impacts on amphibians.

The litigation focuses on an environmental impact statement that suggested changes to a 2001 plan, approved by the Clinton administration in its final weeks, that applied to the nearly 11.5 million acres of national forests in the Sierra Nevada.

The Clinton-era plan was the result of an effort during the 1990s to address certain environmental issues that had arisen, including long-term concerns about sustainability.

When President George W. Bush came into office in 2001, the Forest Service ordered a re-evaluation of the plan.

The 2004 environmental impact statement, which allowed for an increase in logging, was issued over objections from Forest Service staff, who raised questions about the effects on fish. Among other things, the new plan allowed for more construction of logging roads.

Writing for the majority, Judge William Fletcher — a Clinton appointee — said that the agency had failed to give a “hard look” at the environmental impacts on fish that is required by NEPA.

The 2001 study included a 64-page analysis of the impacts on each species of fish, Fletcher noted. In contrast, the 2004 statement “contains no analysis whatsoever of environmental consequences of the 2004 framework for individual species of fish.”

That was despite the fact that the new plan allowed for significantly more timber harvesting “much of it conducted nearer streams,” Fletcher wrote.

The court had no such problem with what Fletcher called the “extensive analysis” of amphibians.

Smith, who was appointed by Bush in 2007, accused the majority of making “fundamental errors” in its analysis by not showing enough deference to the agency and by disregarding circuit precedent stating that an agency’s NEPA analysis is not arbitrary and capricious under the Administrative Procedure Act if it is “performed before a critical commitment of resources occurs.”

The majority also failed to take into account that the 2004 analysis did not need to be as detailed as a site-specific environmental impact statement that is required for individual projects.

The ruling is an “inappropriate and substantial shift in our NEPA jurisprudence,” Smith wrote.

Holly Doremus, an environmental law professor at the University of California, Berkeley, School of Law, said that in her view, Fletcher had the better of the argument.

“I don’t think Smith has it right,” Doremus said. “As Fletcher writes, it has long been the rule that agencies must evaluate the environmental consequences of their actions when it is reasonably possible to do so.”

Click snf to read the ruling.

Note the claims are about NEPA; it might be interesting to compare the level of analysis desired in this programmatic EIS to that in the 2001 Roadless Rule EIS, based on the 10th Circuit Appeals decision on that national level programmatic EIS. If anyone wants to do that, please send what you find and I’ll post.

Next Step on Colt Summit- Complaint

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Thanks to Matthew Koehler for sending this brief that was filed Friday.
Summary.Judge.OPENING.BRIEF.FINAL.filed.jan.27

. I think it’s great to watch a single project go through appeals and litigation. We can also ask the question “how do we think it would be different if we had an objection process instead?

I’m still trying to glean what if anything the plaintiffs would want changed about the project except increasing the buffers and not cutting any trees (but if you don’t cut you don’t need to increase the buffers..). Here’s a link to my previous effort to find that out. I think in an objection process, people could object to the process, but it might also encourage people to put their cards on the table about what they want. If the plaintiffs win this lawsuit, we are likely to get more pages of analysis and at the end of the day another lawsuit if there are activities that the plaintiffs don’t want. I think there is a strong desire by many to “cut to the chase”; I still think that court-ordered mediation would be a good experiment. We tend to use analysis as a stalking horse for real disagreements that should be publicly vetted and discussed. Not in a backroom where settlements are negotiated. In my opinion.

Under the ESA, this means the Forest Service must ensure the physical and
biological factors that qualified the area for critical habitat designation remain
functional. See Ex. F. Activities that may adversely modify lynx critical habitat
include those that “reduce or remove understory vegetation within boreal forest
stands on a scale proportionate to the large landscape used by lynx.” M16-
28:15018. These activities may include, but are not limited to, logging projects
like Colt Summit that involve “forest stand thinning, timber harvest, and fuels
treatment of forest stands.” Id.

Am I reading this wrong or is this saying that there should be no fuels treatment in critical habitat? I have a vague memory that there might have been a percentage allowed in the decision northern rockies lynx decision. Also what does “on a scale proportionate to the large landscape used by lynx” mean?

It’s interesting that the idea that lynx or grizzly habitat may be better off if fires don’t run through the habitat does not appear to be a consideration. Our system of laws seems to have the implicit presupposition that “everything will be fine for species if we just don’t do any human intervention.” Not sure that that accurately reflects the real world under climate change.

Continued: More Questions on the Mexican Spotted Owl Litigation

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Thanks to Defenders of Wildlife for this photo.

Thanks to MD For this E&E news article: I put some questions and comments in italics.

AN E&E PUBLISHING SERVICE
ENDANGERED SPECIES: Judge halts forest projects in Mexican spotted owl habitat (Thursday, January 12, 2012)

Three tree removal projects planned within Mexican spotted owl habitat in Arizona and New Mexico cannot go forward until the Forest Service has a better idea how such projects could affect the imperiled bird, a federal judge ruled last week.


Is this a true statement? It sounds like the judge was saying they couldn’t go forward until the FS does the monitoring, not that the environmental documents did not adequately address impacts.

Last summer, WildEarth Guardians sought an injunction to stop the projects, two involving thinning to reduce the risk of wildfire and another designed to clear trees in a utility corridor. In a decision issued Jan. 5, U.S. District Judge David Bury agreed with the Santa Fe, N.M.-based environmental group, saying the agency must monitor the Mexican spotted owl population and determine how well the birds are faring before allowing trees to be cut within the project areas.

“The issue is that they’re just not doing what they said they would do, which is monitor the population numbers,” said Bryan Bird, public lands director for WildEarth Guardians. “We feel like they shouldn’t take any more actions that could jeopardize the bird without knowing the actual population number.”

This isn’t clear to me; how is the total number of owls relevant to specific projects designed to minimize impacts to the owl. If there are 30,000 owls or 40,000 owls, should the FS stop maintaining the power line and doing fuel treatments around communities? What if some disease occurs in owls and their populations drop in the future.. will the power company be told to top maintaining the power line? I get that organizations should live up to their agreements; just not sure how this agreement is conceptually directly related to the matter at hand.

Critical habitat for the Mexican spotted owl, which was listed as threatened under the Endangered Species Act in 1993, covers 8 million acres in 11 national forests in Arizona and New Mexico.

The group targeted the three projects — a fuel reduction project in south-central New Mexico’s Lincoln National Forest, the Upper Beaver Creek logging project in Arizona’s Coconino National Forest and a utility maintenance project that spans several national forests in the state — because those were “the worst” of all projects planned within the owl’s habitat, Bird said.

Here’s the Decision Notice and FONSI for Upper Beaver Creek. It says..

The acres of treatment within the WUI were decreased because mechanical harvest was not proposed within Mexican spotted owl Protected Activity Centers (PACs) that are within the WUI.

It seems like there must have been a great deal of analysis. Maybe it’s the size of this project that’s of concern? It seems like this one and the power line might have been larger in size, the New Mexico project not so much. It would be interesting to have the rationale for selection of these three projects – why exactly are they considered to be “the worst?”.

Cathie Schmidlin, a spokeswoman for the Forest Service, said the ruling really only affects two projects, because the agency already decided to suspend the Beaver Creek project due to concerns about the owl. She said she could not comment on the court order itself, due to the agency’s policy not to weigh in on pending litigation.

Under the order, the Forest Service also must complete a new consultation with the U.S. Fish and Wildlife Service to determine how to better protect the bird.

Initially, Judge Bury denied WildEarth Guardian’s request to halt the three forest projects, but he reconsidered after the group pointed out that the first ruling was at odds with a broader companion case filed by the Center for Biological Diversity that also involved concerns about the Mexican spotted owl.

‘A considerable undertaking’
A new recovery plan for the owl issued by FWS last summer calls for “vigilant monitoring,” along with habitat restoration, as part of its revised blueprint for pulling the nocturnal bird back from the brink (Land Letter, June 23, 2011).
“The facts aren’t in dispute,” Bird said. “What’s in dispute is how do we move forward and protect the owl while managing the forest.”

The Forest Service itself has noted the need for monitoring the population in documents dating back to 1996, but the agency has repeatedly said budgetary constraints have prevented it from doing so. FWS has designated 8 million acres as critical habitat for the owl, and monitoring that much territory could cost millions of dollars, according to the Forest Service.

“It’s a considerable undertaking,” Bird acknowledged. “But considering they spend up to $1 billion annually on firefighting, just a small fraction of that could completely fix this current problem.”

Not sure that Congress would think that that’s a good idea, appropriation law -wise.

The injunction is the latest development in a long-running lawsuit over the Forest Service’s management of owl habitat that dates back almost a decade. The suit contends that the Forest Service is violating the Endangered Species Act by permitting forest projects, grazing and other activities in national forests in Arizona and New Mexico that could further endanger the owl.

I thought we found out that the grazing is not about the owl, it’s about another species.

The group’s other main concern, Bird said, is that the projects that already have been carried out within Mexican spotted owl habitat may have harmed or killed enough birds to reach the Forest Service’s “take” limit. Under special permits from FWS, a certain number of birds can be killed incidentally during forest projects, as long as those losses do not jeopardize the overall survival of the species. Again, a good population estimate could help the Forest Service make better management decisions, Bird said.

Are owls actually “killed” during forest projects? Wouldn’t the test of whether forest projects harmed owls to look at pre and post project and see what specific owls are doing- did they move somewhere else? There are so many other factors can affect the species as a whole. Monitoring does not/cannot answer the question about project impact.

For example, suppose there was a fire that burned up a lot of owl habitat and reduced the population. According to the above model, the FS would have to have fewer fuel treatments because now there are fewer owls. So communities would not get their WUI fuel treatments and more owl habitat could also get burned up. It seems a bit counter intuitive.

Rep. Steve Pearce (R-N.M.), who has introduced a bill designed to revitalize the logging industry while setting aside preserves for the owl, said in an emailed statement that taking a hands-off approach to forest management in owl habitat could leave Southwestern forests at risk of “devastating” wildfires like the ones that burned through millions of acres in Arizona and New Mexico last summer.

“Overgrown forests are a fire hazard — not only threatening to burn the homes of the people in surrounding communities, but also destroying the habitats of wildlife that special interests are claiming to protect,” Pearce said. “While I agree that the [Mexican] spotted owl and other endangered species must be protected, we cannot do so at the cost of public safety and we cannot afford to do so without a legitimate reason.”

The diminutive owl, which was listed as threatened under the Endangered Species Act in 1993, prefers mature forests that are also prized by logging companies for their large, valuable trees. In more recent years, attempts to reduce fuel loads within owl habitat, which some argue will improve habitat for the bird and protect it from unnaturally large, super-hot wildfires, have taken center stage in the debate over how to balance forest management with protection of the owl.

Reading the projects we are talking about, they are not really about logging companies and “large valuable trees.” Also I’m not sure we’re talking about “unnaturally large superhot wildfires”, but any “natural” fires that lead to reduced habitat for owls.

Again it’s not clear as to whether the debate is about “these specific projects will decrease owl habitat compared to the no action alternative” or “there was a requirement to monitor and the FS did not.”

I did find this information on the Defenders of Wildlife site here, about other factors that affect owl populations including wildfire.

Climate Change and Other Threats

The Mexican spotted owl is threatened by the loss of old growth forests (its preferred habitat) throughout its range, starvation and fire. They are also affected by barred owl encroachment, great horned owl predation, low reproductive success and low juvenile survival rates.

Like other Southwestern species, the Mexican spotted owl faces an uncertain future as climate change makes this region hotter and drier. The birds’ nest success is tied to precipitation, probably because vegetation, and in turn prey populations, depend on adequate monsoon rains. Extended droughts also increase the likelihood of wildfires will decimate their remaining forest habitat.

Finally, higher temperatures and drought conditions favor diseases like the mosquito-borne West Nile virus. West Nile develops more rapidly at higher temperatures, increasing the likelihood of transmission. Drought conditions also concentrate birds at remaining water sources, making them an easier target for disease-carrying mosquitoes.

Positive Step for WEG and Owl Lawsuit

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Thanks to Terry Seyden for this..

In our previous pieces here and here on this litigation, I wondered a bit why the power users in Phoenix, and the townspeople of the Village of Ruidoso should suffer because of an issue between WEG and the FS on monitoring. Apparently, WEG did see it the same way. Good on them.

I still don’t understand the mechanics of how power line maintenance could harm the owl, maybe someone can enlighten me.

Group Won’t Interfere With Thinning
By Rene Romo / Journal South Reporter on Tue, Jan 17, 2012

http://www.abqjournal.com/main/2012/01/17/news/group-wont-interfere-with-thinning.html

LAS CRUCES — Despite winning a federal court order last week halting three forest-thinning projects to avoid harm to the Mexican spotted owl, WildEarth Guardians will not stand in the way of urgently needed work to reduce fire danger, a spokesman said.

The Jan. 5 court order halted two tree-thinning projects in Arizona and, in New Mexico, a project known as Perk-Grindston aimed at reducing fuel loads by tree removal and controlled burns on about 5,000 acres of the Lincoln National Forest on the south and west sides of Ruidoso.

Treating the forest west or southwest of Ruidoso is a high priority because winds that generally blow to the northeast could carry a wildfire into housing developments.

Ruidoso’s municipal forestry director Dick Cooke said while “a good portion” of the Perk-Grindstone project approved in mid-2008 has been completed, more work remains. The village also has treated about 80 acres of land within city limits.

“There’s been quite a bit done, but there’s still much to do,” Cooke said. “I would say the risk of wildfire on that side of the village is still high.”

In Arizona, some of the work halted involved removing hazards from tree growth along power lines. A tree that fell across power lines in late June was blamed for sparking the Las Conchas Fire, which burned more than 156,000 acres near Los Alamos and destroyed dozens of homes in the Cochiti Canyon area.
Bryan Bird, a program director for WildEarth Guardians, said the organization is negotiating with government attorneys and the Forest Service “to assure that the maintenance of the power lines will continue without harming the owl” and before the start of the owl’s breeding season in March.
“They (the Forest Service) need to get started immediately on that, and we understand that and we are being flexible in that matter,” Bird said.

In the Ruidoso area, Bird said, WildEarth Guardians is working to ensure the injunction halts only work that could affect nesting sites “so the Forest Service can continue with thinning where it doesn’t hurt the owl.”

WildEarth Guardians alleged in the 2010 suit that the Forest Service had failed to monitor the population of the Mexican spotted owl as required by a 2005 agreement with the U.S. Fish and Wildlife Service. Bird said without maintaining counts of the owls, the impact of thinning projects on the owl cannot be determined.

— This article appeared on page C2 of the Albuquerque Journal

More Mexican Spotted Owl Court Case Information

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From Courthouse News Service here:

(CN) – A federal judge has stopped three logging projects on National Forest lands in Arizona and New Mexico over concerns that they could harm the Mexican spotted owl.
In a 2010 federal complaint, WildEarth Guardians said the U.S. Forest Service had approved logging and grazing projects in Arizona and New Mexico without studying how the work might affect the Mexican spotted owl. The agency also allegedly failed to properly monitor the owl, which is a threatened species.
Reversing a previous ruling last week, U.S. District Judge David Bury put a temporary halt to logging on Upper Beaver Creek in Arizona’s Coconino National Forest, a utility maintenance project in several Arizona forests and the Perk-Grindstone project in New Mexico’s Lincoln National Forest.
An estimated 91 percent of Mexican spotted owls live on national forest lands. They grow to just 17 to 19 inches tall and prefer old-growth forests. According to the plaintiff’s amended complaint, “biologists estimate that the population of Mexican spotted owls in New Mexico is declining at the rate of approximately 6 percent annually, while the population in Arizona appears to be stable but is not increasing.” The bird has been listed on the Endangered Species List since 1993.
“The Forest Service promised it would count the numbers of the Mexican spotted owl and it hasn’t,” WildEarth Guardians spokesman Bryan Bird said in a statement. “But the agency continued business as usual with no idea how this imperiled bird is faring. It took a federal lawsuit to give the owl some much needed attention.”
Judge Bury sided with the environmentalists on Thursday after initially their call to stop logging projects pending further agency study and consultation with U.S. Fish and Wildlife.
“Defendant USFS tree cutting projects in the Perk-Grindstone Project, the Phase II Utility Maintenance Project, and the Upper Beaver Creek Watershed Project are preliminarily enjoined pending completion of the re-initiated programmatic consultation,” he wrote.
Bury noted that this reversal brings the WildEarth Guardian case in line with a related action involving the Center for Biological Diversity.
“While this court found in this case that the USFS’s failure constitutes a violation of the ESA – and so held in the CBD case – the court has not entered judgment on these claims in either party’s favor in this case,” he wrote. “For this reason – and to maintain consistency with the court’s previous statements regarding the legal consequences of failure to implement RPM 3 in both this case and the CBD case – WEG respectfully requests that the court modify its October 11 order in this case to hold for WEG on the claims arising from the USFS’s non-implementation of RPM 3 to the extent and in the manner proposed above. The court will so modify the declaratory relief portion of the order.”

The article has a links to the amended complaint here.

Here are some interesting things in the amended complaint:

As another example, the USFS has authorized the Phase II Utility Maintenance
Project in Arizona national forests. In connection with the project, the FWS has
determined that “it is reasonably certain that trees greater than nine inches dbh [diameter
at breast height] will be removed . . . within PACs.” This aspect of the project is
inconsistent with and violates the 1996 Standards and Guidelines.
99. As yet another example, the USFS has authorized the Perk-Grindstone Fuel
Reduction Project in the Lincoln National Forest in New Mexico. This project also calls
for timber harvest activities that are inconsistent with the timber harvest restrictions of the
1996 Region 3 LRMP amendments.

100. Since the 2005 BO was issued, the USFS has also planned and authorized
grazing activities on national forest lands that are inconsistent with the standards and
guidelines of the 1996 Region 3 LRMP amendments.

This must be where the grazing activities come in.. does anyone know how grazing and the trees spotted owls need for habitat are related? Or how power line maintenance removing hazard trees (which would otherwise fall down, or they wouldn’t be a hazard?) would affect the owl (would they be nesting that close to power lines?) The intersection between the legal arguments and biology is not clear, at least to me.

21st Century Problems- ” Loving It Without Loving it to Death”- Gallatin Crest

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We’ve heard this mantra in many places when the different recreationists seek to have land managed for their varying methods of recreation. It seems to me if place-based decisions worked out by locals are the best way to proceed- but I’d be interested in hearing other points of view. The comments are also interesting. In the rhetoric around the 2001 Roadless Rule, land needed to be “protected”. Now we find that some believe that that is not “protected enough”- motorized and mechanized need to be “outta there.” Also note the reference to one of our favorite topics.. litigation.

Here’s the link to the story in the Bozeman Daily Chronicle.

The next steps for the Gallatin Crest

CARLY FLANDRO, Chronicle Staff Writer | Posted: Sunday, January 8, 2012 12:15 am

Windy Pass in the Gallatin Range is a place of spectacular beauty.

Trying to explain it, Roger Jenkins recently recalled the opening scene of “The Sound of Music,” when Julie Andrews twirls in a grassy mountain meadow singing “The Hills are Alive.”

“That’s how you feel when you’re standing there,” he said.

Jenkins is president of the Madison Gallatin Chapter of the Montana Wilderness Association and an avid hiker and skier. He believes that a unique tract of land stretching from Yellowstone National Park toward Bozeman – which includes Windy Pass – should be protected and designated as wilderness. That would mean no motorized or mechanized uses would be allowed there.

Kerry White, on the other hand, has been snowmobiling in that same area since the 1960s. He remembers snowmobiling there with his grandfather and father, and wants to make sure he can share those same experiences with his children and grandchildren.

“These areas are precious,” said White, president of Citizens for Balanced Use, a coalition of motorized and mechanized recreationists. “On top of Eaglehead Mountain on a clear day you can see the Grand Tetons 100 miles away. It is spectacular.”

The Gallatin Crest is a special place that people can visit after the work week to “get back that momentum of life” and “recuperate from the everyday grind of traffic and noise,” White said.

From his perspective, designating the land as wilderness would mean locking it up in perpetuity and taking away opportunities for future generations.

The land in question is known as the Gallatin Crest, officially the Hyalite Porcupine Buffalo Horn Wilderness Study Area. It was set aside in 1977 to be considered for wilderness designation by Congress. Legislators, though, still have not decided what to do with the land, and in the meantime, arguments over the area’s future have gone on for more than 30 years.

A recent court ruling has sparked debate again, and area residents are talking about what to do next. Most think stakeholders should work together to come up with a consensus plan, then present it to legislators in the hopes of encouraging them to act.
Litigation and the recent ruling

In 2002, the Gallatin National Forest began preparing a travel plan after realizing that “the demand for some recreation opportunities” in the forest might “be reaching the point of exceeding the capability of the land to provide them,” according to 9th Circuit Court of Appeals documents.

Finalized in 2006, the travel plan restricted the number of trails in the WSA that could be used by motorcycles and mountain bikes. Those changes were made to help the study area retain its 1977 wilderness character — as required by law — until Congress decides whether to designate it.

Environmental groups, including the Montana Wilderness Association, the Greater Yellowstone Coalition and the Wilderness Society, filed a lawsuit against the U.S. Forest Service, essentially alleging that motorized and mechanized use would still be too great under the new travel plan.

Citizens for Balanced Use and another group of motorized users filed a separate lawsuit, alleging the opposite: that the travel plan unlawfully restricted motorized use in the study area.

A district court ruled that the Forest Service didn’t take into account the increased volume of motorized and mechanized users when making its plan. That decision was appealed, and on Dec. 1, the 9th Circuit Court of Appeals upheld the lower court’s ruling.

“We hold that the travel plan improperly ignores the impact of increased volume of motorized and mechanized use on current users’ ability to seek quiet and solitude in the study area,” the ruling said. “Because the Service entirely failed to consider this important aspect of its duty to maintain the study area’s 1977 wilderness character, its decision is arbitrary and capricious.”

So what does that mean for the future of the Gallatin Crest? The answer to that is still being figured out.

The ball is in the Gallatin National Forest’s court

The Gallatin National Forest is responsible for acting on the ruling.

“It may take some time for us to fully digest this ruling and determine an appropriate course of action,” Mary Erickson, Custer and Gallatin Forest supervisor, said in a Dec. 5 statement.

In the meantime, GNF announced that an interim winter plan to manage the WSA would remain in effect. That plan constrains snowmobile use in the WSA to the Big Sky Snowmobile Trail and an open area for cross country snowmobile travel near Golden Trout Lakes.

In a recent interview, Marna Daley, spokeswoman for Gallatin National Forest, said the Forest Service is still grappling with what to do next.

“The real issue is about the opportunity for solitude,” she said.

And solitude is not just affected by the extent or distribution of snowmobiles, motorcycles or mountain bikes, but also by their volume. Deciding what volume is appropriate will be a challenge, as the Forest Service does not have data about volume levels in 1977.

“We’re trying to determine the best way to move forward from here,” Daley said. “We’re trying to find a strategy that is going to result in a management configuration that people can get behind and at least support — maybe not embrace but at least support.”

Ideally, a user-based solution could be found, she said. Additional analyses of the WSA and its opportunities for solitude could also be done.

When asked whether the Forest Service would finance a mediator to help stakeholders reach a consensus, Daley said it would consider that if there were a likelihood of success.

“We certainly don’t have funds to just sink into a process that may not have an outcome,” she said.

She added that the Forest Service is striving to find a solution that will break the cycle of “never-ending litigation.” The Gallatin National Forest hopes to identify the next steps it will take by early February.

While it considers its options, the Forest Service is also dealing with an approximately $170,000 bill for the conservation groups’ litigation costs. Under the Equal Access to Justice Act, federal government entities must pay for the opposing sides’ litigation costs if the opposition prevails in court.

Daley said the bill amounts to 15 percent of the agency’ fiscal year 2012 recreation budget and could impact the amount of trail and road maintenance the Forest Service conducts and whether it can hire as many seasonal employees.

“It’s a significant amount,” she said. “We’ve somehow got to make that up.”

However the Forest Service responds to the 9th Circuit ruling, its actions might trigger continued litigation. Another solution to the problem, though, would be congressional action.

Many stakeholders favor a collaborative effort to produce a plan for the WSA that all could support. That plan could then be presented to legislators and would perhaps encourage them to finally make a decision on whether the WSA should be a wilderness area.
Stakeholders

Ben Donatelle works at a local bike shop and is coordinator for the Wilderness and Recreation Partnership, an organization focused on protecting the WSA while working to improve trails and access outside its boundaries.

He would support a wilderness designation, though it means mountain bikers could not ride on any of its trails.

“There are a thousand miles of other trails,” he said.

He believes one of the greatest reasons for protecting the area is because it serves as critically important habitat and a corridor for wildlife, such as wolverines and grizzly bears.

“I want to have places out there that exist that are pristine, untouched, untracked and, like the wilderness act says, untrammeled by man,” he said. “If everybody went wherever they wanted, will-nilly, we wouldn’t have those wild places. And its been proven time and time again that the public is in favor of that.”

He hopes that the recent ruling serves as a catalyst for the community to come together and take a hard look at why it cares about this place and how it wants it to be managed in the future.

“The common thread is that we all love to get out into wild places and into nature and do what we love to do,” he said. “We should have the foresight to protect some of those places for things that are greater than ourselves.”

Steve Gehman, wildlife biologist and program director for the nonprofit Wild Things Unlimited, said the WSA is important to many rare and sensitive species. It wouldn’t necessarily need to be wilderness in order to maintain the wildlife, he said, but it would add another level of protection for the animals.

Patti Steinmuller, a hiker and skier from Gallatin Gateway, said she thinks community meetings or focus groups are the key to resolving this issue.

“I don’t think congressional action is likely without a broad network of support from the community,” she said. “(We need) a real Montana-based, locally crafted plan that works for everyone.”

White with Citizens for Balanced Use believes there should be more access for motorized uses. Places to snowmobile within the WSA are limited, and in the greater Gallatin National Forest, snowmobilers can travel only in open areas without trees or cliffs.

CBU board member Brad Grein said that the areas snowmobilers do have left have become so crowded that the rewarding experiences of snowmobiling, such as finding untracked snow, have been diminished.

“What CBU is looking for is a fair and balanced approach,” White said. “We don’t see that balance and fairness coming out of the (Forest Service) or being supported by environmental groups. Those folks want it all”

CBU is supporting a bill sponsored by a California legislator known as the Wilderness and Roadless Area Release Act of 2011. It would release WSAs across the country from continued management as de facto wilderness areas.

Some conservationists make the point that if the WSA near Bozeman were not designated as wilderness, it could be subject to natural resource development that could deprive it of its unique qualities.

White believes there are no development opportunities in that area.

“The terrain is prohibitive in that way,” he said. “There’s no chance that (development) would occur. That’s a pipe dream for those guys to even make that argument.”

“We’re going to continue to fight,” he said. “We are not going to stand for losing it all.”

But White said CBU would be open to efforts to work together for a solution.

“All stakeholders need to be engaged,” he said.

Jenkins said the California bill indicates that there’s pressure to resolve these issues. He sees it as a great opportunity for stakeholders to start talking.

“Wilderness and designating wilderness is not about use, it’s not about recreation, it’s not about an outdoor gymnasium. It’s about protecting the landscape,” Jenkins said. “It’s not just all about me, it’s about the future generation, the grandchildren and great grandchildren here today.”

The many stakeholders involved with this issue have diverse perspectives, but Jenkins noted there is common ground.

“All the people talking about this range love it,” he said. “But we’ve got to find a way we can love it without loving it to death.”

If you’re curious about how much wilderness there is already in the vicinity, you can check this handy application (I clicked on Montana,scrolled down to that part of Montana, and clicked off the check for “names” to see clearly), supported by many agencies including the FS and the University of Montana. Remember it shows wildernesses and not Yellowstone Park, parts of which are managed in a wilderness like way (no motorized or mechanized, etc.).

Judge Halts Tree-cutting in Arizona and New Mexico- News and Questions

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The Southwest seems to be the area of interest of the week. Since yesterday, I have seen a couple of news stories on this “judge halts tree-cutting” order. This AP story in the Washington Post had more information and quoted someone with a different point of view. Here it is.

The project that raised my interest was the one maintaining the powerline- if that is in fact harming the owl. I wouldn’t think owls would like to be around powerlines.. maybe they prefer them for some reason? As a biologist, this makes me curious. So I looked up this project (thanks to WEG putting the project names in the press release) and the first thing I found was this piece from FWS about…

On July 17, 2008, Arizona Ecological Services Office issued a biological opinion to the Forest Service, finishing over two years of work to help the Forest Service and utility companies in Arizona comply with the Endangered Species Act in their management of powerline corridors in five national forests in the state.

In 2006, in response to the severe wildfire threat and concerns over the need to remove hazardous vegetation along power line corridors on National Forest lands in Arizona, Arizona Ecological Services Office (AESO) entered into a section 7 consultation agreement with Region 3 of the Forest Service and six utility companies operating in Arizona. AESO established a consultation team of four biologists to work with the Forest Service and utility company biologists through two phases of the programmatic consultation. The first phase dealt with the immediate need to remove hazardous vegetation, and the second phase addressed longer term maintenance of vegetation and structures along existing corridors. In addition to the complexity of this two phase programmatic consultation, AESO needed to meet tight time frames so the companies could address the large backlog of maintenance work needed. Since many of these power lines service the metropolitan Phoenix area, loss of power because of tree falls and the potential for wildfires from overgrown vegetation was a significant issue. The project was complicated by the number of individuals and parties involved. Significant issues arose regarding how to characterize and deal with interrelated/interdependent effects and cumulative effects, and how to address incidental take for some of the species.

The AESO and Forest Service consultation teams worked closely with the companies throughout the process and to develop meaningful conservation measures to minimize impacts from vegetation clearing in these corridors. This programmatic consultation process has been put forth as a model for use in other states to streamline and expedite the section 7 consultation process for individual corridor maintenance projects.

It sounds like a great deal of work was done on this project (it’s a “model for other states”!), that services power lines to Phoenix and it was completed in 2008; this court order being in 2012. I’d like to hear the rest of the story from someone more familiar.

Here’s what Phase II is about according to this letter from FWS (the BO, I think).

The purpose of this consultation is the implementation of Phase II, which will cover all utility line maintenance related activities (i.e., hazard vegetation treatments, routine vegetation maintenance, routine and hazard aerial and ground-based utility inspection patrols, maintenance of lines, hardware and structures, and other associated actions) along utility corridors on NFS lands in Arizona for the next 10 years. Failure to address vegetation clearance and fuels hazards could result in wildfires, major power outages, and injury to life or property. Additionally, existing Federal regulations and utility standards require maintenance2, and new Federal energy regulations mandate vegetation inspections and treatment to maintain lines in safe and reliable operating conditions (NERC Reliability Standard FAC-003-1). Special use permits for the individual lines may expire and be renewed within the 10-year timeframe of this project. If the special use permit requires the utility to operate or expand their impact area beyond what is considered in this consultation, the FS will review the proposed changes and re-initiate consultation with FWS, as appropriate.

It’s still not clear to me what aspects of the project (i.e., hazard vegetation treatments, routine vegetation maintenance, routine and hazard aerial and ground-based utility inspection patrols, maintenance of lines, hardware and structures, and other associated actions) are bad for owls – if hazardous vegetation includes trees that will fall on power lines, are they good habitat? Wouldn’t people maintaining the line be disruptive, so it wouldn’t be good nesting territory anyway?

On the Perk-Grindstone project (not sure I have the correct one, but..) these are some minutes from a public meeting on the planning of what appears to be the Grindstone project at issue. It appears to be a fuels reduction project associated with the Village of Ruidoso. Couldn’t easily find the EIS. but here’s the ROD, and how it addressed the Mexican Spotted Owl.

Mexican Spotted Owl: Alternative 3 would result in approximately 26 percent of spotted owl protected habitat in the project area being adversely impacted, by reducing the number of trees larger than 9 inches in diameter (199 acres within protected activity centers and 422
Record of Decision, Perk-Grindstone Fuel Reduction Project 3
acres outside protected activity centers.) While this is likely to cause some potential adverse impacts to spotted owls and their habitat in the short term, the EIS and biological assessment indicate that these treatments could beneficially affect spotted owl habitat in the long term by reducing the potential extent and magnitude of stand-replacing wildfires in spotted owl habitat.

Also it says in the AP article that grazing is another activity can harm the owl.. is this true?

Here’s the court order which talks about the three decisions only, nothing about a broader range of activities.

Here’s the WildEarth Guardians press release that mentions the project names.

Rep. Pearce seems to be making the point we often hear from Foto- that if owls need trees and trees burn up, then is that good for owls?

Also, why pick these three projects out of all in Az and NM?

Below is the AP story.

Judge halts tree-cutting projects in NM, Arizona in suit over Mexican spotted owl protection

ALBUQUERQUE, N.M. — A federal judge has halted three tree-cutting projects in Arizona and New Mexico that environmentalists contend could harm the Mexican spotted owl.

WildEarth Guardians sued the U.S. Forest Service in 2010, claiming the agency ignored its responsibility to track the owl’s numbers in the two states. The judge’s decision Thursday to grant a preliminary injunction means the projects cannot move forward until the Forest Service consults with the U.S. Fish and Wildlife Service on the impacts to the owls.

A Mexican spotted owl is shown in this undated file photo provided by the Center for Biological Diversity. A federal judge has put a stop to forest thinning and maintenance projects in Arizona and New Mexico that environmentalists contend could harm the Mexican spotted owl, according to a report Friday Jan. 6, 2012.

“The bottom line is we need to know whether the spotted owl is doing well or is declining,” said Bryan Bird, the director of WildEarth Guardians’ wild places program. “And we don’t know that right now because the Forest Service has failed — and they’ve admitted it — to collect that information.”

The owl found on national forest lands, from steep wooded canyons to dense forests, was first listed as threatened in 1993. More than 8 million acres in four Western states — Arizona, New Mexico, Utah and Colorado — have been set aside by Fish and Wildlife as critical habitat for the bird.

Federal biologists have said the biggest threat to the owls is destruction and modification of their nesting habitat.

Forest Service spokeswoman Cathie Schmidlin said Friday that the agency is contacting contractors and power companies to let them know of the court’s order. One of the projects is for fuel reduction in southern New Mexico’s Lincoln National Forest, while a utility maintenance project stretches across a handful of Arizona forests.

Schmidlin said logging activities on the Upper Beaver Creek Project on northern Arizona’s Coconino National Forest already have stopped.

U.S. District Judge David Bury in Tucson initially denied a request from WildEarth Guardians to put a stop to the projects but reconsidered at the group’s request. Bury wrote in his order Thursday that the injunction aligns with a decision in a companion case that was more broad but also cited concerns over the Mexican spotted owl.

The lawsuit claims the Forest Service continues to approve logging, grazing and other activities on the Southwest region’s 11 forests that could potentially harm the bird. It asked the court to keep the agency from approving or implementing any permits or projects on forest land in Arizona and New Mexico until the agency also prepares a biological assessment.

Bird said his group focused on the three projects out of dozens because it determined those had the most immediate impact to the owl that now will “get the attention it deserves.”

Rep. Steve Pearce, R-N.M., who has sponsored legislation to revitalize the Southwest’s timber industry and set aside parcels of forest land as sanctuaries for the owl, backed what he called a common sense approach to management by the Forest Service.

He said he’s heard from the Mescalero Apaches, whose reservation is surrounded by the Lincoln National Forest, that the owls appear to be thriving as a result of logging.

Overgrown forests are fire hazards that endanger people’s homes and threaten wildlife habitat, he said.

“While I agree that the spotted owl and other endangered species must be protected, we cannot do so at the cost of public safety and we cannot afford to do so without a legitimate reason,” he said.

Added note: I was working on this post on Saturday morning, when I listen to the Jonathan Schwartz show on WNYC. I couldn’t help but wonder, as I listened to him, whether if they were NYC’s power lines, would the work have been done already?

Finally I’d be interested in both a link to the lawsuit and to the FS response, if anyone knows where those might be found.