Litigation

California Snowmobile Lawsuit

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From the Redding Record-Searchlight here.

For the time being, north state snowmobilers won’t have to worry about the U.S. Forest Service limiting where they can ride, even as a lawsuit challenging the recreational activity makes it way through federal court.

On Nov. 3, the Snowlands Network, Winter Wildlands Alliance and Center for Biological Diversity filed a civil suit in federal court challenging whether the U.S. Forest Service has adequately studied the potential harms snowmobiling causes California’s forests. The groups allege snowmobiles are sources of toxic emissions, water and noise pollution, they disturb winter animals and damage snow-covered foliage. The suit also alleges snowmobiles are a nuisance for those who enjoy winter “nonmotorized recreation” like cross-country skiing and snowshoeing. The suit notes several members of the environmental groups are among those “seeking quiet recreation.”

“Due to the adverse impacts of snowmobiles, other governmental agencies that have extensively studied snowmobile impacts — such as Yellowstone National Park — have imposed restrictions on the types and number of snowmobiles allowed, and severely limited the areas in which they may be used,” according to the groups’ complaint. “The Forest Service has not taken comparable action.”

John Heil, a spokesman for the U.S. Forest Service’s Pacific Southwest Region, said Monday forest administrators won’t make any changes to how snowmobile riders access or use public lands while the suit is pending.

He declined to talk about the suit, saying the Forest Service doesn’t comment on ongoing litigation.

The suit was condemned by at least one local snowmobile rider, Sylvia Milligan, the former north region director of California-Nevada Snowmobile Association. The Anderson woman called the suit “frivolous.”

Milligan also is chairwoman of the Recreation Outdoor Coalition, a group that had challenged potential restrictions to off-highway vehicles on federal forest land.

She said snowmobile riders are a responsible group who ride machines that have limits on how much noise they can make and the amount of emissions they release. She said the state recently performed its own environmental reviews and found no problems.

“They couldn’t sue against it (the state),” Milligan said. “Now, they’re trying to sue the Forest Service.”

Milligan notes her fellow riders have tried to foster positive relationships with snowshoers and skiers, many of whom enjoy trekking on the groomed snowmobile trails and the ungroomed paths the snowmobiles pack down.

“We try so hard to get along with these folks,” she said.

There are 260 miles of groomed and ungroomed snowmobile trails on three national forests near Mt. Shasta. The primary access point for snowmobilers in the Shasta-Trinity National Forest is on the Pilgrim Creek Road outside of McCloud.

The suit says there are more than 1,700 miles of groomed snowmobile trails on California’s national forests, providing snowmobile riders access to more than 8.3 million acres, a vastly larger amount than that given other nonmotorized recreation, where only 162 miles of trails are maintained for skiing and snowshoeing.

Here’s a link to the lawsuit.

My comment: it’s interesting that some have argued that non-recreation uses of the land interfere with recreation and the economic and social benefits of recreation. A brief look around on the internet suggests that snowmobiling is a positive tourism economic benefit to communities, and an activity that families enjoy outdoors (aka “kids in the woods”). My view is always that a more productive dialogue would be “I think you should manage snowmobiles differently in these specific cases for these specific reasons” rather than “you need to do more NEPA.” Just sayin’

Logjam Project Decision

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Here’s a link to the decision. I excerpted the parts that referred to the claims made about the NEPA analysis. Here’s a news story.

2. TCS’s first challenge on appeal to the approval of the Logjam Project is that the Forest Service violated NEPA’s requirement that it take a “hard look” at the cumulative impacts of the project by failing to disclose the cumulative environmental impacts from six logging projects currently planned by the Forest Service, as well as from past logging and road building on non-federal lands.
We do not find TCS’s arguments persuasive. The future logging projects identified by TCS involve less than 300 acres, but past harvests in the Tongass National Forest involve over 10,000 acres, and the Logjam Project itself will involve 3,422 acres. The Draft Environmental Impact Statement (“DEIS”) listed the six future logging projects as well as the planned harvests on lands owned by Alaska. It devoted eleven pages to the impact on the aquatic environment, discussed the cumulative impact for each of the alternatives under consideration, and is supported by an appendix that lists projects “in the Logjam Timber Sale Cumulative Effects Area.” Although TCS alludes to other future projects, they appear to be too indefinite to allow a study of their cumulative impact on the Logjam Project. In sum, TCS has not shown that the Forest Service did not take a “hard look” at the cumulative impacts of future projects together with the Logjam Project.
Furthermore, it does not appear that TCS raised concerns about the cumulative impacts from these future projects before the Forest Service. Neither TCS’s administrative appeal of the Logjam Project nor any of the appellants’ objections to the DEIS mentioned the six timber sales on federal land or the two sales on state land. This failure to focus the Forest Service’s attention on the treatment of the cumulative impact of future projects may well bar TCS from raising the matter before this court. See Buckingham v. Sec’y of U.S. Dep’t of Agr., 603 F.3d 1073, 1080 (9th Cir. 2010) (plaintiff barred from raising argument in judicial proceeding because it failed to raise it with the Forest Service “with sufficient clarity to allow the [agency] to understand and rule on the issue”).
TCS also argues that the Forest Service failed to take a “hard look” at the cumulative impacts of future timber sales by “tiering” to a non-NEPA document and by aggregating cumulative impacts. It is true that we have prohibited an environmental impact statement from “tiering” to a non-NEPA document, see Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 801-11 (9th Cir. 1999), and League of Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1219 (9th Cir. 2008). However, it is not clear whether the FEIS’s citations to certain supporting documents constitute “tiering” in the sense of deferring to the supporting documents to address the impacts of the project, or constitute references to specialist reports prepared specifically for an environmental impact statement as permitted by 40 C.F.R. § 1502.21. Similarly, TCS has not shown that the aggregation of cumulative impacts, which the Ninth Circuit allows for past timber harvests, see Ecology Ctr. v. Castaneda, 574 F.3d 652, 667 (9th Cir. 2009), may not be applied to harvests that have already been approved under a separate environmental impact statement. In any event, there is no suggestion that the Forest Service hid, or failed to consider, any relevant information regarding cumulative impacts.

Finally, even if we were to find some merit to some aspect of TCS’s arguments concerning the cumulative impact of future projects, we would still deny TCS relief on the ground that the error was harmless. In Shinseki v. Sanders, 129 S.Ct. 1696, 1705-06 (2009), the Supreme Court clarified that to set aside an agency decision as being based upon an error, the plaintiff must show that the error was not harmless. We recently reiterated that “the failure to provide notice and comment is harmless only where the agency’s mistake clearly had no bearing on the procedure used or the substance of decision reached.” Cal. Wilderness Coalition v. U.S. Dept. of Energy, 631 F.3d 1072, 1090 (9th Cir. 2011) (internal quotation marks and citations omitted). Under NEPA, we will not grant relief for a violation of procedure if “the decision-maker was otherwise fully informed as to the environmental consequences and NEPA’s goals were met.” Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 527 (9th Cir. 1994). Here, in light of the minimum acreage involved, the Forest Service’s consideration of the impacts, and the parties’ focus on other issues, any error in the presentation of the cumulative impact of future projects would not warrant relief.

3. TCS’s second argument on appeal concerning the Forest Service’s approval of the Logjam Project is that the Forest Service violated NEPA by failing to disclose the concerns of the Alaska Department of Fish and Game (“ADF&G”) about wolf mortality. Specifically, TCS asserts that the DEIS failed to state that ADF&G had concerns about wolf mortality, that this resulted in challenges to the DEIS being focused on wolf mortality concerns rather than discussing alternatives, and that the FEIS, while acknowledging ADF&G’s concerns, did not do so adequately.

We do not find TCS’s arguments convincing. The DEIS disclosed that (a) wolf hunting and trapping occurs in the area, (b) roads provide access for hunters and trappers, and (c) the road densities for the area exceeded the recommended density level. Furthermore, it appears that appellants were aware of ADF&G’s concerns and addressed them in their comments on the DEIS. Thus, the DEIS, despite its misstatement of ADF&G’s position, contained enough information to elicit extensive detailed public comments on the wolf mortality issue, and thus served “the NEPA goals of public participation and informed decision making.” Westlands Water Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 874 (9th Cir. 2004).
Moreover, a review of the FEIS reveals that the Forest Service gave wolf mortality the requisite “hard look.” The FEIS (a) recognizes the concerns of the ADF&G biologists, (b) notes that the Forest Service and ADF&G are working on wolf mortality concerns on a broader basis than the project, (c) explains why the harvest data and wolf management reports do not support a wolf mortality concern in the Logjam area, (d) discusses a number of options that ADF&G has for regulating the hunting of wolves, and (e) explains why much of the wolf hunting in the Logjam Project is not explained by the density of roads. The district court properly found that TCS had not shown that the Forest Service failed to take a “hard look” at wolf mortality.

4. TCS’s third issue on appeal also concerns wolf mortality and alleges that the Forest Service violated the National Forest Management Act (“NFMA”) by arbitrarily concluding that wolf mortality was not a concern, failing to consider the unlawful hunting of wolves, failing to consider that closing the project area to hunting will not reduce wolf mortality, and failing to prepare a wolf habitat management program prior to approving the Logjam Project.

TCS’s arguments are not persuasive. The record reveals that the Forest Service does not deny that wolf mortality is a concern. Rather, the record shows that the Forest Service is working with ADF&G to address the concern on a broader level than this particular logging project. An appendix to the FEIS details why approval of the Logjam Project will not compromise the wolf population. Also, the regional supervisor for ADF&G confirms that the ADF&G and the Forest Service are working together to develop a wolf management plan and that the Logjam Project “does not trigger an immediate conservation concern.” Accordingly, our independent review of the record leads us to conclude that the Forest Service reasonably determined that it did not have to prepare a wolf habitat management program in advance of implementing the project. TCS has not shown that the Forest Service acted arbitrarily or in violation of the NFMA in approving the Logjam Project.

5. TCS’s final contention on appeal is that the Forest Service acted arbitrarily in analyzing the impact of the project on deer winter habitat. Specifically, TCS asserts that in its model for determining the effect of the project on deer habitat, the Forest Service (a) first correctly excluded non-federal lands for the estimation of habitat capability, (b) recognized that non-federal land have a presumed zero habitat capability, and (c) then “reported the habitat capability it calculated for just federal lands to be representative of the whole” area, resulting in an overcalculation of capability. The Forest Service responds that the deer model is only one tool for assessing management impacts on deer, and denies that it committed any material methodological error.

We need not determine whether the Forest Service committed an actual computation error of the habitat capability of the Logjam Project area because: (1) it is not clear that TCS raised this claim before the Forest Service, see Buckingham, 603 F.3d at 1073; (2) even if the Forest Service committed a methodological error, the record shows that it nonetheless gave the impact of the Logjam Project on deer habitat the requisite “hard look;” and (3) the distortion due to the computation error, if it occurred, was harmless. The ADF&G notes that it and the Forest Service reviewed the deer model, the model tends to overestimate the impact from timber harvests, and that the deer harvest in 2008 was the highest recorded in the last decade. Furthermore, as non-federal land constitutes only two percent of the Logjam Project area, the maximum distortion due to the alleged computation error would appear to be only two percent. TCS has the burden of showing that this alleged error was not harmless. Shinseki, 129 S. Ct. at 1705-06. Here, in light of all the other considerations that went into the FEIS, any error in the computation of the deer model for the Logjam Project had no bearing on the Forest Service’s decision.

Science: Beacon of Reality – AFS Keynote by Bob Lackey

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Here’s a paper by Bob Lackey, well worth reading, especially for any of us practitioner/scientist types. He’s got a great deal of real world experience in the natural resource science policy world. I think the whole paper is interesting but excerpted the section below that addresses some of the issues we discuss regularly on this blog.

In case you are unfamiliar with Bob and his work, here’s his bio.

But, for scientists who take their civic responsibilities seriously, all is not well. Far from it.
Specifically, for scientists at least, advocating personal or organizational policy preferences has become widely tolerated as acceptable professional behavior.

Scientists may even be encouraged to do this by a portion of our professional community. The risk: we will diminish ourselves and the scientific enterprise when we allow personal or organizational policy preferences to color our scientific contributions.

This is a morass into which we scientists must not allow ourselves to slip. As scientists, we have a special role, an exclusive role because we are uniquely qualified to provide technical knowledge that is based on rigorous scientific principles.
It is this policy neutral knowledge that the public and decision-makers sorely need.
Is the scientific enterprise at risk? It is! A recent U.S. national poll revealed that 40% of the general public has little or no trust in what scientists say about environmental issues. And, about as bad, the remaining 60% were not overly positive either. I suspect that similar results would be found in Canada, especially relative to fisheries science.

How pervasive is this distrust?

I have a good friend who has worked for several big national environmental
organizations. When I shared with him some of the ideas I planned to present today, he stopped me cold with a blunt reality check:
“

Bob, you’ve got to move into the 21st century. Science is a weapon in the policy wars. We buy the most believable scientists we can find and send them into court to battle Government scientists. Eventually the judge gets overwhelmed by the minutiae and orders the parties to go away and work out some kind of a compromise. This is how it works now. When this happens, we nearly always win because the agency just wants to make the case go away. And, best of all, they usually agree to pay our legal costs. That’s the real world, my friend!”

What did I say to warrant this rant?
But he was more upfront than most policy advocates, and I’ll accept that his is a sound political strategy, for an advocacy group, but it is a corruption of science and the scientific enterprise. He is paid to understand and manipulate the political and legal system to achieve his organization’s goals. Fine, but it is still a corruption of science.
What role should scientists play in policy debates? How can they best provide
leadership? How does a scientist lead from behind?

First, scientists should contribute to and inform policy deliberations. This is not only the right thing to do, but it’s an obligation, especially if our work is publicly funded. I also do not hold with the notion that it is sufficient for fisheries scientists to publish their findings in scholarly papers, papers that only a few technical experts will ever read. I take it as a given that scientists also should provide, and explain, the underlying science, including uncertainty, around important policy questions.

Second, when scientists do contribute to policy analysis and implementation, and they should, they must exercise great care to play the appropriate role. Unfortunately, working at this interface is also where some scientists mislead or confuse decision makers by letting their personal policy preferences color their science.
It is so easy to do.
Let me share a slightly embarrassing story that demonstrates one consequence of
allowing policy preferences to infect science. It involves a veteran Government lawyer, someone I have worked with for years.
We were relaxing in a Portland pub after spending a long, long day listening to dueling scientists testifying in an Endangered Species Act trial. I was trying to convince him, from my perspective as a scientist, that it seemed reasonable to expect opposing litigants to at least be able to agree on the basic science relevant to a particular court case, the so-called “scientific facts of the case”. After all, the legal debate should be over interpretations of the law, not science, right?

Perhaps I was badgering him a bit too much, but his response to my pestering jolted me:

Bob, you guys have no credibility. All of you spin your science to lend support to whatever policy outcome you or your organization favors. I’m not sure science was ever a beacon of truth, but it sure isn’t now, at least not in the legal arena. I watch scientists routinely misuse science in case after case.”

No credibility? Science spin? Misuse of science? He was wrong, wasn’t he?
No — he was not entirely wrong. Let me offer an example.
The most common misuse of science is to assume a policy preference and then
incorporate that policy preference into scientific information. Such science is called normative science, and normative science is, unfortunately, increasingly common.
Let me be unequivocal. Using normative science is stealth policy advocacy, plain and simple. Ignorance is no excuse.
Who would do such a thing?
It happens and it happens often.
An example from this part of North America: the case of the 160 year decline in wild
salmon and the role of dams. Here is a big insight: dams have an effect on wild salmon
populations and the effect is negative.

Along the West Coast, it is common for scientists to be asked to gauge the likely effects on wild salmon of removing a particular dam, or building a particular dam.
This is a legitimate and appropriate role for fisheries scientists, and one that we are well positioned to play. But, there is no scientific imperative to remove, or build, dams. Policy imperatives come from people’s values and priorities, not from science.
All of the policy options regarding the future of dams have ecological consequences,
some of which may even be catastrophic from a salmon perspective, but ecological
consequences are simply one element that the public and decision makers must weigh in choosing from a set of typically unpleasant alternatives.

Hardly a week passes that I don’t receive an online petition from an advocacy group
asking me, and other scientists, to sign as a show of support to remove a particular salmonkilling dam for reasons that sound like science, read like science, are presented by people who cloak themselves in the accoutrements of science, but who are actually offering nothing but policy advocacy masquerading as science.
Scientists, acting in their role as policy neutral providers of information, should not decide whether it is more important to use water to sustain wild salmon, or use the same water to generate electricity to run air conditioners, or the same water to irrigate alfalfa fields, or the very same water to make artificial snow at your favorite ski resort.
Politically, from what I observe today, the use of normative science cuts across the
ideological spectrum. It seems no less common coming from the political Left or Right, from the Greens or the Libertarians, or from Government agencies or Private sector organizations.
Regardless of the political ideology, normative science is a corruption of science No
matter how strongly a scientist feels about his or her personal policy preferences, practicing normative science is not OK. No exceptions.

Collaborative Groups as Friends of the Court?

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In terms of what Mike said here about other groups (such as collaborative groups) filing in lawsuits as friends of the court, I would think that if it works for the Chesapeake Bay Foundation, it would work for local collaborative groups (if they could afford attorneys, or perhaps law students could volunteer to support these groups). Hopefully, more knowledgeable people can tell me if I am barking up the wrong tree here.

Here’s the link.

Bay Foundation, others can join restoration suit
By ALEX DOMINGUEZ Associated Press​
Posted: 10/13/2011 02:49:17 PM MDT
Updated: 10/13/2011 03:45:13 PM MDT

BALTIMORE—The Chesapeake Bay Foundation and other groups can join a court fight over bay restoration efforts, a federal judge in Pennsylvania ruled Thursday.

The bay advocacy group, other environmental organizations and associations representing sewer authorities asked to side with the federal Environmental Protection Agency​ as defendants in the suit. The American Farm Bureau Federation sued the EPA in January over the stricter federally led effort and other groups have since joined the challenge. Critics say it is too far-reaching and will burden states with huge costs.

U.S. District Sylvia H. Rambo said the groups may help settle the complex case.

“In fact, given the complexity and voluminous size of the administrative record, which includes scientific models, the court finds that the presence of the intervenors may serve to clarify issues and, perhaps, contribute to resolution of this matter,” Rambo said in her order.

A telephone call by The Associated Press seeking comment from the American Farm Bureau Federation was not immediately returned Thursday afternoon.

Foundation attorney Jon Mueller said the groups were “looking forward to arguing this case in order to ensure that Bay restoration moves forward, and that all do their part to reduce pollution.”

The other environmental groups joining the foundation in the motion were Penn Future, Defenders of Wildlife, the Jefferson County Public Service District, the Midshore Riverkeeper Conservancy, and the National Wildlife Federation. The National Association of Clean Water Agencies, which represents sewer authorities nationwide, also sought to intervene with state sewer authority associations. The head of the association said in May that his organization has some concerns about the EPA’s strategy, but is much more concerned with attempts by the plaintiffs to walk away from the process.

Chesapeake Bay Foundation President William Baker accused the plaintiffs on Thursday of trying to halt the restoration process.

“The effort to derail Bay restoration must be stopped, here and now,” Baker said. “We are pleased we can be part of defending the Bay restoration effort and are confident that the court will uphold the public’s right to clean water.”

The EPA’s strategy puts everyone in the six-state bay watershed on a “pollution diet” with daily limits for how much sediment and runoff can come from each area. Pollutants such as nitrogen and phosphorus from fertilizer, auto and power plant emissions cause oxygen-robbing algae blooms once they reach the bay, creating dead zones where sea life can’t live.

Farmers and agriculture interests are concerned about the strategy because agriculture is the single largest source of bay pollutants, according to the EPA’s Chesapeake Bay model. While agriculture has made gains in reducing bay pollution, the strategy calls for even more reductions from all sectors.

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Legal Decision on Monitoring SW Species

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Thanks to Matt Koehler for this submission..

For Immediate Release, October 12, 2011
Contact: Taylor McKinnon, Center for Biological Diversity, (928) 310-6713
Erik Ryberg, Western Watersheds Project, (520) 622-3333

Court Slams Forest Service’s Refusal to Monitor Southwestern Endangered Species

TUCSON, Ariz.— A federal judge on Tuesday sided with the Center for Biological Diversity and Western Watersheds Project in a lawsuit challenging the U.S. Forest Service’s chronic refusal to monitor the health of threatened and endangered species in national forests throughout Arizona and New Mexico.

The 2010 suit alleged that the Forest Service failed to monitor populations of species, including the Mexican spotted owl and ridge-nosed rattlesnake, as required by a 2005 “biological opinion” authorizing implementation of forest plans for national forests in Arizona and New Mexico.

“The U.S. Forest Service has been shirking its legal obligation to monitor the Southwest’s most imperiled species and make sure its actions aren’t pushing them into extinction. Instead the agency’s been spending its money elsewhere and leaving these vulnerable species in the lurch,” said Taylor McKinnon of the Center. “This court ruling finally holds the Forest Service accountable for neglecting these species and putting them at the very bottom of its list. We hope the Mexican spotted owl and other imperiled species will now get the protection they need and deserve.”

The ruling provides endangered species with interim protection while the Forest Service and Fish and Wildlife Service reinitiate consultation on the regional forest plans. The ruling suspends livestock grazing on four grazing allotments that were determined likely to harm endangered rattlesnakes, imposes restrictions recommended by Fish and Wildlife on logging near Mexican spotted owl nests at the Upper Beaver Creek timber sale in northern Arizona, and may provide a basis for suspending other actions harming endangered species prior to completion of a new biological opinion.

“Arizona’s public lands are deceptively rich in animal life, and it is unfortunate that the Forest Service treats those animals with such disdain,” said Erik Ryberg with the Western Watersheds Project. “Western Watersheds Project is hopeful that this legal victory will cause the Forest Service to acknowledge the damage that their widespread livestock grazing programs inflict on animals that make these public lands their home.”

In June 2005, the U.S. Fish and Wildlife Service issued a biological opinion that gave the Forest Service, in accordance with the Endangered Species Act, permission to implement forest-management plans in all 11 national forests in Arizona and New Mexico. As a condition of that permission, the Forest Service agreed to monitor threatened and endangered species’ populations and their habitats.

But in October 2008 the Service issued a report admitting it had not done the monitoring. It also admitted that it might have exceeded its allowable quota of harm to some species, including the Mexican spotted owl. The Center warned the Forest Service of an impending lawsuit if it did not begin the required monitoring, which the agency has continued to refuse to do. After the Center filed suit, the Forest Service and Fish and Wildlife Service reinitiated consultation; today’s decision provides interim protections for endangered species until the reinitiated consultation is completed.

The lawsuit was argued by attorneys Marc Fink with the Center for Biological Diversity and Matt Kenna from Durango, Colorado.

To view Tuesday’s ruling, click here.

Now Entering Litigation: The Cone of Silence Descends

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I would just like to restate that I believe strongly in “telling the truth and obeying the law.” The discussion below is about the pros and cons of resolving natural resource disputes through the courts.

Awhile back, I had some questions about what the litigants on the Colt Summit project felt needed to be changed about the project, so we could understand their reasoning better.

Matthew suggested here that I write the litigants directly, which I did. Here’s the series of emails.

Here’s my original note:

Dear Alliance for the Wild Rockies and Friends of the Wild Swan,

I administer a blog called New Century of Forest Planning. We have
been following the litigation on the Colt Summit Timber Sale with some
interest. We would be interested in finding out exactly what changes
could be made to the sale such that you would support it enough not to
litigate. Could you explain what activities you want to stop in what
units and why?

Thank you!

Sharon Friedman

Here’s his response:

Dear Ms. Friedman,

Thank you for contacting me.

Since you are a Forest Service employee and Forest Service attorneys have gotten upset with us in the past for talking to Forest Service employees about pending litigation, we need to first ask our attorney to contact your attorney to ask if it is alright to negotiate with you.

We do think is is odd that the Forest Service was non-responsive to our comments and appeal and yet we are supposed to believe that if we debate this on a blog site it will bring changes to the project.

Sincerely,
Michael Garrity
Executive Director
Alliance for the Wild Rockies

Mike,

The NCFP blog is something I do in my spare time and not related to my
“day job”. Therefore, any discussion with FS lawyers would be
inappropriate.

I wasn’t implying that blogging will bring changes to the project,
but it would bring understanding to our readers of what your position
is in terms of “specific activities on the ground that you disagree
with.” The purpose of our blog is to help understand and clarify why
people disagree about resource issues (in a safe and respectful
environment).

We seek to understand.

Sharon

Dear Sharon,

You are still a Forest Service employee so before I discuss the case with you I would like your lawyers to OK it first so they don’t get made at me later. They were very clear in the past that I was not to discuss any pending litigation with Forest Service employees. They didn’t make any distinction about after hours conversations. If you would like to learn more about the case without talking to me I sure the Forest Service attorneys would be happy to discuss it with you.
Sincerely,
Mike Garrity

This all makes sense to me. The FS and AWR are in litigation now, so only lawyers should be talking and only ones involved in the case. But I still think that we need to be upfront about the disadvantages of going from an open public dialogue to something else. Again, I think a required period of mediation, open to the public to observe, would be an improvement. I think we would all learn something about the different approaches people take, and different beliefs, and interpretation of facts.

I’d also like to clarify that I see my role on this blog similar to my membership in SAF and, in the past, when I was in leadership in that group. I could represent the SAF at some times, the FS at other times- as long as I was clear with others whom I was representing. If there were potential conflicts of interest, I would recuse myself. I am not blaming Mike here for not making the same distinction; it is a natural consequence of entering Litigation World. But, again, when we may need a broad diversity of viewpoints and ideas to come to a mutually agreeable conclusion, I wonder if under the “cone of silence” is the best place for that to happen.

Colt Summit Map and FWS Concurrence Letter

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It seems like this project has led to much discussion so..
Here’s the map of this project..

Given the discussion of wildlife impacts on previous posts, I thought it might be enlightening to review the FWS letter on the project.
Here is the link (the FWS letter is listed under “supporting”):

The proposed action consists of activities to improve habitat conditions for wildlife and restore forest conditions by developing a diverse mix of vegetative composition and structure that better represents historical conditions for the area. Activities include: vegetative treatments including prescribed fire on about 2,043 acres; decommissioning 4.1 miles of road along Colt creek; maintaining approximately 17 miles of existing roads under Forest jurisdiction and implementing BMPs where necessary; constructing approximately 3 miles of temporary roads and snowroads;
storing or decommissioning 25.2 additional miles of road; allowing 9.9 miles of road which is closed to public access and naturally restored to remain in this condition; replacing two aquatic barrier culverts; and conducting ground-based noxious weed herbicide treatments. All temporary roads and snowroads would be decommissioned following completion of the vegetation management activities. The proposed action consists of two distinct parcels that lie directly across highway 83 from one another and are in close proximity to a cluster of private homes.

Further information regarding the proposed action was provided in the biological assessment. The Service has reviewed the biological assessment and concurs with the determination that the proposed action is not likely to adversely affect the threatened grizzly bear (Ursus arctos horribilis), the threatened Canada lynx (Lynx canadensis), or designated critical habitat for Canada lynx. Therefore, pursuant to 50 CFR 402.13 (a), formal consultation on these species is not required.
The Service bases its concurrence on the information and analysis in the biological assessment prepared by Scott Tomson, East Zone Wildlife Biologist. The proposed action is located within the Northern Continental Dived grizzly bear ecosystem (NCDE), in the Swan subunit and the Mission subunit, and outside of the NCDE where grizzly bears may occur. Although temporary roads will be constructed during the grizzly bear non-denning period, they will only be used for harvesting activities during the grizzly bear denning period with the exception of units 6 and 7 which are located along Highway 83. These temporary roads would primarily be snowroads, would only be used for access/hauling, would be closed yearlong to the public, and would be decommissioned upon project completion. Some BMP would be conducted on approximately 7.1 miles of roads and trails. The best grizzly bear habitat in the vicinity of the project provides spring habitat and the majority of road work, including road construction, would occur from July 1 through April 1, outside of the spring period. The road along Colt Creek would be decommissioned and re-routed in lower quality habitat at mid slope, closer to private land along the Highway 83 corridor. Although this re-route would result in a half mile increase in linear road density, the action would result in a more desirable condition for grizzly bears overall. Upon completion of the project, total road density would decrease by 4 percent and security core would increase by 1 percent (330 acres) within the Mission Subunit. Open road density would decrease by 1 percent within the Swan subunit. Also, the re-routed road would be closed during the spring season (April 1 through June 30). In addition to access management related impacts, project related activities may result in minor effects to cover; however, adequate forest cover would be retained within the action area. The potential for some activities to result in disturbance to grizzly bears does exist. However, most of the activity would occur during the grizzly bear denning period. Also, adequate displacement areas within the Bob Marshal Wilderness and Mission Mountain Wilderness are within close proximity to the project activities. A district-wide bear attractant order is in place which requires safe storage of all bear attractants.
The proposed action is located with the Clearwater Lynx Analysis Unit (LAU) in areas also designated as critical habitat for Canada lynx, containing primary constituent elements (PCEs). No precommercial thinning is planned and the stands selected for treatment are not considered mesic, multi-storied forests providing quality snowshoe hare habitat (lynx foraging habitat). Therefore, lynx foraging habitat (PCE1a) would not be impacted. Some temporary snowroads would be constructed for harvesting activities and most activity will occur during the winter. Therefore, some additional snow compaction would occur as a result of the action. However, such impacts would be minimal to lynx and to PCE1b. The project area is not considered to be high quality denning habitat (PCE1c). Large blocks of mature forest with significant amounts of coarse woody debris occur within the LAU and denning habitat is not considered limiting on the landscape. Therefore, impacts to denning habitat (PCE1c) would be minimal. Finally, the project area includes some matrix habitat (PCE1d). All treatments proposed would maintain the forested nature of the stands, thus maintaining the ability of lynx to travel through matrix habitat (PCE1d). Habitat connectivity would be maintained and the action would not result in permanent destruction of lynx or snowshoe hare habitat. The proposed action is consistent with all applicable standards and guidelines of the Northern Rockies Lynx Management Direction.
We agree with the conclusions in the biological assessment that project related impacts to grizzly bears, Canada lynx, and designated critical habitat for Canada lynx would be insignificant.

Collaboration Can’t Fix What Ails Public Forest Management

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Thanks to Matthew Koehler for sending this..

Collaboration Can’t Fix What Ails Public Forest Management

By Steve Kelly, Friends of the Wild Swan

For decades, forest activists have performed vital oversight, monitoring and enforcement of environmental laws and regulations. Caused by the rapid rise of neoliberalism, beginning in earnest during the Reagan administration, Congress and administrative agencies largely avoided policy responsibilities associated with our environmental laws. Politicians and agency bureaucrats have been screaming bloody murder about grassroots environmentalists and “gridlock” ever since. The simple fact remains, the primary cause of “gridlock” is the government’s systematic refusal to follow environmental laws and regulations.

The steady rise of neoliberalism in the Clinton years led to the now commonplace sharp political rhetoric, which directs its attacks toward the legitimacy of local grassroots forest activism. Add to this a proliferation of market-based, professional “problem solvers” touting “win-win” solutions and jobs, and one can see the game is rigged in favor of those with a vested financial interest in subsidized commodity extraction. This approach is typically dismissive of science and the law and grassroots activism.

Stakeholder partnerships prefer to engage in consensus and collaboration processes which favor a narrow, economics-based view of forest ecosystems. When challenged, collaborative stakeholders say one thing, and do the opposite, which usually leads to more old growth logging, and bulldozing new roads to access the remaining pockets of big, old trees.

One recent example of collaboration gone wild is the Southwestern Crown of the Continent Collaborative Forest Landscape Restoration Program, which was authorized in 2009 under the Omnibus Land Management Act. The stated purpose of this collaborative program is to encourage the collaborative, science-based ecosystem restoration of priority forest landscapes.

In practice, normal environmental assessment procedures, required by the National Environmental Procedures Act (NEPA), are being undermined by making decisions that may affect thousands of acres of public forest before conducting proper analysis of forseeable environmental impacts, especially cumulative impacts. Full funding has already been allocated by Congress and the Obama administration to a program that lacks a programmatic Environmental Impact Statement (EIS). NEPA just becomes a speed bump at the end.

Once a project has been selected a work plan and business plan must be developed within 180 days. These plans describe how projects will be implemented, treatment costs, infrastructure needed, projected supply of woody biomass and timber and the local economic benefits.

The work plan is then submitted to the Regional Forester for approval. Project
implementation may begin once the requesting unit has been notified that the work plan
has been approved.

All of this indicates that any NEPA will be front-loaded.

Here is a copy of the Friends of the Wild Swan Newsletter
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I read this piece, but I don’t understand it. I know some things about NEPA but perhaps not as much as I should about CFLRP, so perhaps readers could enlighten me.

What does Mr. Kelly want a programmatic EIS on? A specific project?

NEPA doesn’t say that agencies can’t work with the public in developing proposals to be analyzed, in fact one of the ideas in NEPA is fostering public involvement. Doesn’t it make sense to develop a proposal before you analyze it? How else could it work? Would it be better for agencies to develop proposals without the public? Maybe I’m missing something here…

And I wonder about this quote:

Stakeholder partnerships prefer to engage in consensus and collaboration processes which favor a narrow, economics-based view of forest ecosystems. When challenged, collaborative stakeholders say one thing, and do the opposite, which usually leads to more old growth logging, and bulldozing new roads to access the remaining pockets of big, old trees.

It is a pretty broad brush statement about “stakeholder partnerships.” I think that some of the collaborators around the country might question whether their view is “narrow, and economics-based”. They might see themselves as seeing the big picture of sustaining the land and people, and working respectfully with each other to understand different views and find the best solutions. They might see others as “lawsuit-happy ideologues.” 😉

Sharon

Colt Summit- Garrity Editorial

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Here’s the link, thanks to Matthew Koehler for submitting this..

Guest column by MIKE GARRITY | Posted: Thursday, October 6, 2011
Government has to follow laws as well

How ironic is it that while the Missoulian was chastising the Alliance for the Wild Rockies for filing a lawsuit to protect the environment in its editorial last Sunday (Oct. 2) the Alliance, the Environmental Protection Agency and Montana’s Department of Environmental Quality had just reached an agreement in a lawsuit originally brought by the Alliance 14 years ago.

The agreement has huge benefits for cleaning up Montana’s rivers, streams and lakes that would not have happened without the lawsuit and subsequent settlement agreement. Here’s a direct quote from the Reuters article that appeared in the L.A. Times, the Chicago Tribune and other major papers and media outlets nationwide.

“Richard Opper, head of the Montana Department of Environmental Quality, credited the 14-year-old lawsuit brought by environmentalists with making the state ‘get its act together.’ ‘We lost the original case, and we deserved to lose,’ he told Reuters in a telephone interview on Monday. ‘In the old days, we weren’t following that federal law very well. Now we have a new attitude, and we are doing the right thing.’ ”

Opper’s quote and the credit he gives the Alliance for bringing the lawsuit is timely considering the Missoulian editorial board’s stance. More importantly, it brings the seminal issue to the forefront: We are a nation of laws, not a nation where a handful of “collaborators” can decide which laws will or won’t be followed. Government agencies, just like the rest of us, have to follow the law.

Had the “collaborative” Colt-Summit logging project – for which the Missoulian criticized the Alliance – followed federal law, the Alliance would have applauded it. Unfortunately, that’s not the case. The agency refused to follow the law or heed well-documented evidence. And so, as part of the process proscribed by law, we were forced to file a lawsuit in federal district court to stop this timber sale for the sake of taxpayers as well as the elk, fish, grizzly bears, lynx and a myriad of other old growth dependent species that rely on unlogged national forests.

Consider these points:

• The plan to log federally designated critical habitat for lynx and bull trout as well as prime grizzly habitat violates a host of federal laws including the National Environmental Policy Act, the National Forest Management Act and the Endangered Species Act.

• The Forest Service’s own analysis notes that 94 percent of the project is in an area that the Lolo Forest Plan requires to be managed for the benefit of grizzly bears as its top priority. The agency also admits that logging and the new roads that go with it will reduce important wildlife hiding cover and that similar logging on adjacent private lands has harmed big game and grizzly bear habitat. Yet, the agency and the collaborators who support the logging plan fail to explain how reduction of existing cover levels on our national forests can possibly be called “restoration.”

• Contrary to Forest Service claims, the logging destroys lynx habitat since it drives out the snowshoe hare and ground squirrels, upon which they prey. The Forest Service’s own research show that lynx do not use forest lands that have been recently clearcut or thinned. In fact, forests that have been logged in the Seeley-Swan Valley are avoided by lynx.

• The Forest Service’s own environmental assessment reveals that this timber sale will cost taxpayers over $1.5 million with little in return except the destruction of critical wildlife habitat. Given the current national debate over government spending, an expensive and destructive timber sale to benefit a for-profit corporation is not defensible.

• The Alliance and its environmental allies fully participated in the Colt Summit process, which is required before anyone can file a lawsuit challenging the Forest Service’s decision.

“Collaborators” do not make laws – and we all have to follow the law. The Missoulian would do its readers a favor by remembering that before it criticizes the Alliance for the Wild Rockies – or any other citizen group – for trying to get the federal government to follow the law.

Mike Garrity is executive director of the Alliance for the Wild Rockies.