Litigation

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
**************************
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.

Putting Lawsuits Before Results: Missoulian Editorial on Colt Summit

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Thanks to Terry Seyden for this find (so glad you’re back!).

Putting lawsuits before results: Environmental groups suing over timber sale need to collaborate
Missoulian editorial | Posted: Sunday, October 2, 2011 8:00 am

http://missoulian.com/news/opinion/editorial/article_f76db5d8-eb93-11e0-af9c-001cc4c002e0.html

Nearly everyone – environmental groups, timber companies, private landowners and public lands agencies – would agree that land management decisions are best made outside the courtroom. Years of bitter legal disputes have demonstrated that the vast majority of problems are best solved out of court, so forest lands can be managed in a more timely, efficient, and less costly manner.
This has been especially apparent in Montana, where a relatively new collaborative approach is increasingly gaining traction – and being watched carefully by others hoping to copy its success.
By bringing to one table all those with a vested interest in forest land management, collaboration has significantly cut down on the number of lawsuits concerning the Lolo National Forest, supervisor Debbie Austin told the Missoulian editorial board last week. What’s more, she said, it results in better management decisions.
But not everyone is on board. Certain environmental groups remain stuck on the old way of getting their way. Apparently, they continue to favor lawsuits over a seat at the table.
Earlier this month, several environmental groups filed suit against the Forest Service over a timber sale near Seeley Lake. The Alliance for the Wild Rockies, Friends of the Wild Swan, Montana Ecosystem Defense Council and Native Ecosystems Council say the Colt Summit Forest Restoration and Fuels Reduction Project should have included a full environmental impact statement, and that the statement’s results should be compared to the provisions in the National Forest Management and National Environmental Policy acts. They also argue that the project ignores the potential impact on wildlife.
The groups involved in the project’s planning, of course, beg to differ. The Wilderness Society, for one, believes the environmental analysis performed on the project is sufficient – and certainly more expeditious than a cumbersome environmental impact statement. That is especially important given the risk of wildfire to the Seeley Lake community, said Megan Birzell, a Northern Rockies forest associate for the Wilderness Society.
The project now being challenged in court would both remove roads and thin forests on more than 4,300 acres of land over five years. The specifics of the project are the direct result of much hard work, debate and problem-solving by a group of people with diverse but intersecting interests – and a test, of sorts, for the Montana Forest Restoration Committee, to see whether collaboration can trump litigation.
It ought to. Lawsuits have an important role to play in protecting public resources from bad decisions. But they should be methods of last resort, used only after all other options have been exhausted.
Unfortunately, some environmental groups may be so used to slapping lawsuits on new projects that they are missing an opportunity to solve potential problems before they become actual problems. They are rejecting an open invitation to resolve their concerns during the planning process, instead of after the fact.
Regardless of whether they win or lose in court, that’s clearly not the best way to go about protecting Montana’s public lands.

EDITORIAL BOARD: Publisher Stacey Mueller, Editor Sherry Devlin, Opinion Editor Tyler Christensen, Sales and Marketing Director Jim McGowan

Lake Tahoe Angora Project Wins Appeal

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WatershedTour AngoraFire 2008

9th Circuit clears USFS logging at Lake Tahoe (here)

By SCOTT SONNER, Associated Press

A federal appeals court cleared the way Monday for the Forest Service to begin logging near Lake Tahoe, where a wildfire burned more than 250 homes four years ago.

In making its ruling, a three-judge panel of the 9th Circuit U.S. Court of Appeals in San Francisco rejected claims that the project violates environmental laws and will jeopardize the survival of a rare woodpecker.

The panel issued a two-page ruling denying an emergency injunction sought by two environmental groups.

The panel, including Chief Judge Alex Kozinski, gave no reason for its decision.

They said they will give the Earth Island Institute and Center for Biological Diversity until Oct. 3 to submit formal briefs so the case can be considered on a normal schedule in November.

Chad Hanson, executive director of the institute’s Sierra-based John Muir Project, said the group would continue to challenge the logging even if it is completed by November because an important precedent is at stake.

He said the argument by the Forest Service that it has no legal requirement to maintain a viable population of the black-backed woodpecker in the national forest at Lake Tahoe contradicts every previous administration’s interpretation of the National Forest Management Act dating to 1982.

“”The black-backed woodpecker is one of the rarest bird species in the entire Sierra Nevada and the Forest Service is pushing it toward extinction with its post-fire logging program,” Hanson told The Associated Press.

The Forest Service says the logging of about half of the 3,000 acres that burned in June 2007 is part of an overall restoration project that will help speed regrowth of burned stands and reduce the threat of future catastrophic fires.

The $3 million project is not intended to produce any merchantable timber, only chips and scrap wood for biomass.

The opponents counter that they have no problem with cutting trees with a diameter of less than 10 inches, but the agency’s plan to log some trees nearly 2-feet thick and to remove dead standing trees that the woodpeckers thrive on will do nothing to reduce fire threats. They say the forest should be left to regenerate on its own.

“Their own fire analysis specifically concludes that this project will actually increase the fire hazard slightly relative to doing nothing,” Hanson said. “It will not protect the community, and they did not contest that in their reply briefs because they cannot.”

He said the project amounts to a $3 million subsidy for the biomass industry.

Forest Service officials did not immediately return telephone calls or emails seeking comment on Monday.

Lawyers for the agency said in legal briefs filed last week they don’t believe the woodpecker will be harmed by the logging.

They said U.S. District Court Judge Garland Burrell Jr. made it clear that he agreed with their interpretation in his July 13 ruling in Sacramento denying a similar injunction.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2011/07/25/state/n125152D63.DTL#ixzz1TLwIqP62

Here’s the CBD press release. It includes a critique of the use of woody biomass.

Although I am not an expert, this appears to be the rationale for doing it the way the FS chose (from the EA here).

Reduced Removal of Snags: There were concerns that the proposed action would remove
snags that are not necessary to meet the purpose and need. The following alternative was considered: leaves all snags >16 inches in diameter except where they pose an imminent health and safety hazard to forest users and works. An analysis was conducted to compare the amounts of downed fuel that would accumulate in three time frames: immediately after project implementation, 20 years after project implementation, and 50 years1 after project implementation. These values were compared with the desired conditions that are described in Chapter 1. In summary, these desired conditions are: reducing wildland fire behavior under
high fire weather conditions (hot, dry summer days), including flame lengths of less than 4 feet at the head of a fire; reducing the rate of spread at the head of the fire; reducing hazards to firefighters by removing snags from locations likely to be used for fire suppression; and doubling fire line construction rates. To meet these desired conditions for defense zones, average fuel loading should be less than 10 tons per acre of various size and decay classes of woody debris (see discussion under Section 1.3, “Overview of the Existing Condition”). The desired conditions are responsive to the need to ensure that fuel loadings do not create potential wildfire behavior conditions such that fire severity is excessive or that fire suppression
activities are ineffective or compromised in protecting communities or wildlife and watershed values.
The analysis of residual fuel loadings if dead trees >16 inches dbh were left (Project Record Document E20) revealed that fuel loadings would not meet the desired conditions over time as all of the remaining dead trees fall after project implementation (36 tons per acre, weighted) and hence would not meet the desired conditions (10‐15 tons per acre) nor would this alternative meet the purpose and need of reducing long‐term fuel loadings (see discussion under Section 1.5.1, “Fire, Fuels, Vegetation, and Forest Health”). In addition, leaving dead trees
>16 inches dbh would leave approximately 31 downed logs per acre, which would reduce
fireline construction rates. This condition also would not meet the purpose and need. A study by Brown et al. (Project Record Document E179) acknowledges that leaving high amounts of coarse woody debris leads to high or even severe resistance‐to‐control. The predicted fuel loading if all trees >16 inches dbh were left at 36 tons per acre would lead to high or even extreme resistance‐to‐control, which would mean slow work for line construction by dozers and hand crews and difficulty in holding control lines. These conditions would not meet the desired conditions for defense zones immediately adjacent to communities.

Here’s a previous post on this project from this blog.

For those of you curious about black-backed woodpeckers, here is an interesting write-up from Region 1. It seems like it thrives on post-fire trees, which it seems like there should be plenty of in the Sierra other than this 1400 acres, just based on reports of fires in the Sierra. Also notice the range of the species here in a South Dakota entry.

Based on reports of climate change effects and more frequent fires, and bug attacks, seems like their habitat should be increasing across the west. But I’m not a bird person; am I missing something?

Center for Biological Diversity on EAJA Bill

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Thanks to Matthew Koehler for sending this in..

I know it’s a press release, but I found some of the rhetoric to be rather off-putting. If the case is being made that your organization is “good,” a thought might be to try to refute others’ ideas in a respectful way. What partisans appreciate (vitriolic attacks) tends to dispel your credibility with the broader community- and can the end justify the means? I’ve italicized the most egregious examples.

Further, the piece starts out with an assertion that the bill keeps nonprofits from protecting veterans, etc. That doesn’t seem to be the case based on what Andy says here. And since Andy has not gone on record supporting psychological warfare against my kind (as has Mr. Suckling here), I am more inclined to believe him.

And if a press release starts out with an easily checked untrue assertion, how likely is it that I will take your word on things I don’t have the time to look up? Just sayin’.

Center for Biological Diversity: Our goal is to save species, not make money
by Kiéran Suckling

Industry-funded zealots are angling to prevent nonprofits from protecting veterans, children, workers and the environment. With the absurd argument that nonprofits are getting rich by making the government follow its own laws, they want to ensure that only the truly rich are able to take the government to court.

Even those who should know better are drinking the Kool-Aid, including outdoor writer Ted Williams, whose essay in the June 23 Tucson Weekly accused the Center for Biological Diversity of “shaking down taxpayers.” Cribbing from the Internet like a Fox News intern, Williams serves up industry propaganda with a side of his own trademark use of “anonymous” sources and dubious quotations.

Laws to make working conditions safe, ensure our water is clean and protect the rights of veterans and children only work when they are enforced. Often, they are not because of industry pressure. Witness the complete dominance of the U.S. Minerals Management Service by the oil industry.

American democracy guards against corruption by allowing citizens to sue the government. Now, taking on the government isn’t cheap. You have to go up against the entire Department of Justice. That’s easy for the oil industry, Walmart and developers who have money to burn. It’s not so easy for the rest of us.

To level the playing field, the federal government pays the legal fees of individuals, small businesses and nonprofit groups—if they win. If they lose, they pay their own way.

In its campaign to revoke this essential equalizer, industry has launched a public-relations war hinged on the big lie that nonprofits—especially environmental groups—are getting rich by ensuring that environmental laws are followed.

The current darling of the propaganda machine is Williams, who accuses the Center for Biological Diversity of filing petitions to protect hundreds of endangered species and then suing the government when it inevitably fails to rule on the petitions within 90 days. In Williams’ tightly scripted anti-environmental message, it’s a racket producing “a major source of revenue” for the center.

Nonsense. Between 2008 and 2011, the center received legal-fee reimbursements for an average of one case per year while challenging the government’s failure to process endangered-species protection petitions within 90 days. The average yearly total was $3,867—much less than the center spent bringing the cases. Not exactly a get-rich-quick scheme.

Rush to court? Every one of these suits was filed after the government missed its 90-day protection deadline by months, and in some cases by more than a year. I would submit that spending $3,867 of the federal government’s money to save the Mexican gray wolf, walrus and right whale from extinction is a bargain and a half.

Williams dives completely into the propaganda sewer when he quotes an “anonymous” government official complaining about a center petition to protect 404 rare Southeastern plants and animals. The “anonymous” source is allegedly outraged that the center will file a slam-dunk nuisance lawsuit because the government can’t possibly study all 404 species in 90 days.

In fact, the center didn’t sue, even after the government missed its deadline by 420 days. Instead, we developed a plan with the U.S. Fish and Wildlife Service to ensure all these rare species get reviewed for protection in a reasonable amount of time.

Without providing any supporting data, Williams goes on to charge that the center is raking in the cash by suing “for missed deadlines when the agency can’t keep up with the broadside of Freedom of Information Act requests.”

Hmm. In the past four years, the center received legal reimbursements for exactly one Freedom of Information Act deadline suit, and the amount we received ($3,031) was far less than we spent forcing the Department of the Interior to come clean with the public over its offshore oil leasing program in the wake of the Gulf of Mexico disaster.

The Center for Biological Diversity will keep expending vastly more resources ensuring the government follows its own wildlife protection laws than we’ll ever recoup. That’s fine with us, because making sure bald eagles, wolves, and even Tucson shovel-nose snakes and Arizona tree frogs have a place to live and grow is more important than money.

It’s why we do what we do.

Forest Service Paid $6.1M in Groups’ Legal Fees Over 6 Years

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Scales of Justice by Graham Ibbeson in Middlesbrough

This EE news story, printed in the NY Times here, is notable for among other things having a link to this Journal of Forestry article.

Study: Forest Service Paid $6.1M in Groups’ Legal Fees Over 6 Years
By LAWRENCE HURLEY of Greenwire

The Forest Service paid $6.1 million in legal fees to groups that sued it over a six-year period, according to an academic study that casts new light on a politically charged issue.

At issue is the Equal Access to Justice Act (EAJA), which requires the federal government to pay attorneys fees when it loses cases under statutes that do not specifically call for such fees to be paid by the government.

Some Republican lawmakers argue that environmental groups have taken advantage of a lack of oversight on such payments and file numerous lawsuits they know they can win on procedural grounds.

Recently introduced legislation (pdf), the “Government Litigation Savings Act,” would amend the statute. The measure’s lead sponsors are two Wyoming Republicans, Sen. John Barrasso and Rep. Cynthia Lummis (E&ENews PM, May 25).

The new report (pdf) — published in the latest issue of the Society of American Foresters’ Journal of Forestry — includes data from the Forest Service and Justice Department obtained through Freedom of Information Act requests.

The payments cover the period 1999 to 2005.

The researchers were Michael Mortimer, an assistant professor at the College of Natural Resources and Environment at Virginia Tech University, and Robert Malmsheimer, a professor at the State University of New York College of Environmental Science and Forestry.

They found that of the $6.1 million that the Forest Service reported paying, $3.2 million went to environmental groups. DOJ reported a different total, $3.5 million.

Frequent litigators included the Sierra Club Legal Defense Fund, the Center for Biological Diversity and Earthjustice.

In reaching conclusions about the findings, Mortimer and Malsheimer conceded the difficulty of making sweeping generalizations, especially due to the discrepancies in the data.

While the law could be seen as encouraging litigation, they wrote, some groups are likely to litigate, regardless of whether they can win legal fees.

“Even if EAJA were completely repealed, these organizations would likely continue to sue land management agencies,” the researchers wrote.

Some of the bigger environmental groups, they wrote, “are quite well financed and therefore not the class of plaintiffs for which the law was designed to provide access to the expensive federal litigation system.”

Although there are repeat players, they wrote, “the vast majority of parties” are only involved in one lawsuit.

Responding to the study, John Buse, legal director for the Center for Biological Diversity, said he disagreed with the researchers’ suggestion that EAJA is a “positive incentive” for litigation because it reduces the risk for groups filing suit.

Although “it may be true” that the law reduces risk, it does not follow that it encourages people to sue, he added.

The study also downplays the law’s role in “incentivizing agencies’ compliance with the law,” Buse said.

The Republican-backed bill (H.R. 1996 (pdf)) to reform the law would restrict reimbursements for each entity to no more than three in a calendar year and would prevent payments to any group that has a net worth of more than $7 million.

The maximum payment for each case would be $200,000.

Separately, there is language in the House appropriations bill for the Interior and U.S. EPA that would require tracking and reporting of EAJA payments.

Click here (pdf) to read the paper.