National Parks

How Overseas Visitors Can Help Steward Our National Parks: PERC Report

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This report is from PERC from last December. I just visited a few National Parks, which reminded me to post it.

Dozens of the world’s most high-profile national park systems charge overseas visitors more than locals. Adopting a surcharge for visitors from abroad at U.S. national parks could significantly increase revenue, providing parks with more funding to address maintenance and improve visitor experience.

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A Higher Level of Stewardship

In dozens of countries, park visitors from abroad pay more than locals for entry.6 A higher charge levied on foreign visitors reflects their general ability and willingness to pay more. After all, the price of admission at a national park is generally a fraction of overall trip costs for visitors, especially those from abroad.7 Asking international tourists who do not support U.S. national parks through taxes to pay a little more to see them is not only reasonable, it would also provide additional resources to improve the stewardship of our “crown jewels.”

Moreover, formal evidence suggests that demand to visit U.S. national parks—in particular the highest-profile destinations—is not sensitive to admission prices, particularly for overseas visitors. One study published in 2014 found that the price of gasoline affects national park visitation more than entry fees do.8 Another study, from 2017, estimated that raising the vehicle entry fee at Yellowstone National Park by more than double—from $30 to $70—would decrease visitation from foreign visitors by a mere 0.07 percent.9 A negligible dip would be logical given that the average overseas visitor was already spending an estimated total of $4,484 on their trip. In that context, increasing fees by a mere $40 would barely register in a traveler’s budget.

The current fee system for national parks in the United States lacks nuance, with most visitors paying a flat weekly fee that permits access for all passengers in a private vehicle.10 As part of this relatively blunt system, standard overseas visitors pay the same price as U.S. citizens and residents. Or put another way, locals enjoy no discount when visiting their home-nation parks. Often, Americans pay even more than foreign visitors to support national parks because, in addition to paying entry fees, most U.S. residents pay income taxes, which also partially support parks. Approximately $20 per U.S. taxpayer goes toward the National Park Service budget—each and every year, regardless of whether those Americans visit a national park.11 Asking overseas tourists who are not a part of the tax base to pay a little bit more to see remarkable sites in need of stewardship seems not only logical but prudent.

As many U.S. parks are facing record visitation and struggling through funding shortfalls, the idea of charging international visitors more than domestic ones has gained traction. The National Park System Advisory Board has suggested that differential pricing based on residency could be a way to increase park revenue, noting the success of that strategy in other nations.12 Additionally, the late Sen. Mike Enzi (R-Wyo.) pushed in 2019 to legislatively implement a surcharge for overseas visitors to help fund national parks by raising tourist travel and visa fees by $16 and $25, respectively.13

It seems like a pretty common-sense idea to me, what do you think?

To Intervene, or Not to Intervene? The Case of Isle Royale, Wolves and Moose

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A pack of wolves after they killed a moose at Michigan’s Isle Royale National Park. (January 24, 2023) AP Photo/Rolf Peterson, Michigan Technological University.

AP had an interesting story about the reintroduction of wolves on Isle Royale, a National Park that is an island. Wolves apparently had only been there since the 1940’s. Even in Wilderness, there are disagreements about when intervention should occur and to what end.

Scientists believe the island’s first moose swam to Isle Royale around the turn of the 20th century. Wolves arrived in the late 1940s, apparently crossing the frozen lake surface from Minnesota or the Canadian province of Ontario. Though technically part of Michigan, that state’s shores are farther away.

Moose provided an ample food supply for the wolves, which in turn helped keep moose numbers in check. Both populations rose and fell over the years, influenced by disease, weather, parasites and other factors. But inbreeding finally took its toll on the wolves, whose numbers plummeted between 2011 and 2018.

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The scientists’ annual report, based largely on aerial observations last winter, estimated the rebuilt population at 31 wolves— up from 28 last year. It said the wolves appeared to be forming three packs, with others wandering alone or in smaller groups. The moose total was roughly 967, down from 1,346 last year and 54% decline from about 2,000 in 2019. Ecologists are celebrating what they hope will be a healthier herd.

“It’s been hugely successful,” said study co-leader Sarah Hoy, a research assistant professor and animal ecologist. “That’s what everyone was hoping for.”

But the early results haven’t settled a debate over whether people should rescue struggling species at Isle Royale or other designated wilderness areas, where federal law calls for letting nature take its course.

“We have felt and still believe that the National Park Service should not have intervened and set up this artificial population of wolves,” said Kevin Proescholdt, conservation director for the advocacy group Wilderness Watch.

Some experts said they should be allowed to die out, as have other species that once occupied the island, including Canada lynx and woodland caribou, which had the same predator-prey relationship as today’s wolves and moose.

“Species come and species go,” Proescholdt said, arguing that the federal Wilderness Act “directs us to let nature call the shots and not impose our human desires.”

Park officials and Michigan Tech scientists contend the absence of a top-of-the-food-chain predator of moose and beaver would have been ruinous for the island’s forest. Even now, its balsam firs continue to deteriorate from moose browsing and an attack of tree-killing spruce budworm, the report said.

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The moose population’s 28% drop from 2022 is one of the biggest one-year collapses ever seen at the park, it said. While wolf predation is partly responsible, necropsies indicate the biggest cause was starvation from overpopulation.

Even though relatively few moose calves appear to be surviving to adulthood, there’s no reason to worry about the moose’s immediate future, Michigan Tech biologist Rolf Peterson said. They’ve fallen to 400-500 before and bounced back. But the warming climate, tick infestations and other long-term challenges will remain.

For now, the park’s ecosystem is getting healthier thanks to the wolves’ return, he said, suggesting the decision to intervene was correct.

“The old hands-off approach to managing national parks, figuring everything will turn out OK, is probably not sufficient,” Peterson said. “Our footprint is all over the entire globe.”

If hands-off is not sufficient for National Parks, then, why would we think it is for Forest Service or BLM? Or perhaps it’s not a question of hands-offness so much as who gets to decide when to be hands-on and for what reasons.

Saving Sequoias amid “Yesterday’s Solutions”: The Park Service Changes Course

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A firefighter in Yosemite National Park scrapes material away from a giant sequoia during the Washburn Fire in July 2022. NPS photo by Garrett Dickman.

Since Thomas Sowell is a Californian (albeit a Coastal), I thought a few of his quotes are relevant to our federal lands policy world.

“On closer scrutiny, it turns out that many of today’s problems are a result of yesterday’s solutions.”

For dry forest areas, the good intentions of “not killing lots of people and burning towns” led to fire suppression. That worked until..
Fire suppression led to fuels buildup.
And the idea..
Let’s leave forests alone and not take trees (fuels) out. An idea that developed in the more populated mesic areas of the country. That worked until..

Fuel buildups, more people igniting, climate change, and other factors.. led to large wildfires that kill people and burn towns.

Another Sowell quote:

There are no solutions. There are only trade-offs.

What have we learned from this cycle? Thanks to Bill Gabbert for this ..

Garrett Dickman is a biologist at Yosemite National Park.

“These next couple of years could be bad in ways we haven’t experienced yet,” Garrett says. The Park Service knows what’s coming. After 60 years trying to walk backward by managing their lands to be what conservationist Starker Leopold, who devised the agency’s guiding philosophy from the late 1960s until 2021, called “vignettes of primitive America,” the Park Service has changed course to officially recognize that park managers must intervene in ways considered antithetical to their mission two years earlier. The new policy asks the public to open its mind to everything from mechanical thinning to very limited logging. “We saw how it goes when you don’t do anything,” Christy says. “It goes terribly. It goes thousands of 2,000 year old trees burned up in an instant.”

“We don’t get to have nice things anymore,” Garrett says.”

“The Clean Water Act. The National Environmental Policy Act. The National Historic Preservation Act. The Threatened and Endangered Species Act. Fantastic laws all of them,” Christy says. “But they were built at a time when the main threat was people doing bad things—logging, mining. Now the main threat is inaction. Bureaucracy is slow. Wildfire is fast. And bureaucracy needs to get a hell of a lot faster if we want to persist and not lose everything we’ve got left.”

Aside from the difference between “mechanical thinning” and “logging”..it seems like the Park Service knows what it needs to do to protect old growth Sequoias. I wonder why the Forest Service and BLM have to go through an elaborate national process to possibly figure out the same thing. Whose ends is that serving? Is it simply an exercise (taking much agency and NGO time) to prove to certain ENGOs that doubling down on yesterday’s solutions that exacerbate today’s problems is a really bad idea?

National Park Service Litigated for “Logging” Hazard Trees in Yosemite

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There are several interesting things about this FrezBee article on litigation by Earth Island Institute on Yosemite hazard tree removal..

(1) The Park Service can’t comment because it’s under litigation… the cone of silence. So we get only one side of the story. Too bad there aren’t some Park retirees the reporter could interview.

“Yosemite National Park is aware of the litigation that was filed regarding the tree removal in the park,” Yosemite spokesperson Scott Gediman said Wednesday afternoon. “We are currently reviewing the contents of the litigation. At this time, we do not have any further comment on this matter and we’ll continue to work through it.” Gediman said he was not able to answer some other questions from The Bee at this time, which included whether Yosemite ever solicited public input about the project.

(2) for you NEPA-nerds

Instead of conducting a new environmental impact statement or environmental assessment, the lawsuit states, Yosemite filed a less-thorough categorical exclusion form, which largely relies on older studies. Earth Island Institute said that document is inadequate and in contradiction with key points in previous plans, including that Yosemite can now remove trees up to 20 inches in diameter, instead of those only up to 12 inches in diameter. “Tiered actions cannot ‘differ’ from the document tiered to – this is the opposite of what NEPA contemplates,” the lawsuit states.

CE’s don’t have to be tiered to anything is my understanding, and why would the Park Service tier if they didn’t have to?

(3)

Hanson said some of the felled trees are being sent to commercial sawmills, while in the past, hazardous trees cut down in Yosemite were left on the ground to biodegrade as part of the ecosystem. “This is a massive departure from that,” Hanson said, “and they didn’t even tell anyone they were doing it.”

Apparently to Hanson, all biomass needs to be left in place, even if dead and within 200 feet of a road, so that it can fall naturally (?).

Hanson worries about the precedent this project could set. He’s never heard of a similar project in another national park. “I’m profoundly concerned,” Hanson said, “because if Yosemite National Park can start a large-scale commercial logging program, then this can happen in any national park in the country.”

I know that Rocky Mountain National Park also cut down and removed bark beetle killed trees along roads and in campgrounds. They may have burned them in piles, which would be arguably worse for the environment than sending them to become lumber or to a biomass plant (re: carbon and air quality, as well as risk of pile burning escaping containment). It seems awfully philosophical for the rightness of the action is based on whether the trees are sold or not, not what happens to the environment when they are removed/ burned or whatever.

Unless the thought is that the Biden Park Service is out to cut more trees to satisfy the evil timber industry (sounds not too believable, IMHO).

(4) This quote relates to our “how long is a planning document useful” and “what is controversial” questions.

In a court declaration, Hanson said Yosemite shouldn’t be relying upon a 2004 fire management plan. Since then, “the entire scientific landscape has changed dramatically regarding forest and wildfire science, and the 2004-era assumptions and assertions upon which the Project is based are now viewed as strongly contested, highly controversial, or largely discredited,” he continued.

If we follow his logic, any dry forest NFMA plans earlier than 2004 would not have current legal validity as being out of date. And since science changes so quickly, we could expect a plan that takes five years to develop to be out of date as soon as it gets out of litigation. It makes the task of plan revision sound a bit Sisyphean. Of course, this is not news to many FS employees.

(5) If 200 feet from the centerline is too much, how will the public be involved in the outcome of the lawsuit, since the plaintiffs are concerned about the public having a voice. Perhaps putting any proposed settlements out for public comment? I think that that would be a great innovation. This seems like the kind of thing mores suited to open and transparent mediation than litigation IMHO.

More on Filming on Federal Lands: Outside Magazine

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From https://morethanjustforests.com/

Outside had this story. What I thought was most interesting about the judge seemed to think that having permits is about environmental damage, and not so much about the taxpayers getting their share of any monetization. Andy has posted on this before here, that it has to do with the peculiar nature of Park Service regulations on filming.

In the opinion, Kollar-Kotelly noted that new technology and the evolving media landscape have changed the nature of filmmaking. The permitting system was intended to mitigate ecological impact, but an independent filmmaker shooting a climbing documentary is a much different beast than a crew shooting the next Star Wars movie.

“Now, over two decades after the passage of § 100905, any individual may easily enter a national park and shoot a high-quality video at will using nothing more than a smartphone,” she wrote. “With the expansion of mass-media outlets like YouTube, such filmmakers may expediently disseminate and monetize those videos on the internet. Yet, so long as these modern filmmakers attempt to commercially market their videos, § 100905 and its implementing regulations require a permit, without any regard for the effect that their filming might have on the preservation of national park land.”

I wonder whether the permitting system was actually designed only to charge enough to mitigate ecological impact. It seems like other kinds of permits, it’s argued that feds should charge fair value for the American taxpayer (however that is defined). As a taxpayer, it seems to me that for anyone who monetizes something from federal lands, we should get some piece of the action.

The Park Service will also no longer distinguish between different types of filming, such as commercial, noncommercial, or news-gathering projects. In the past, a major newscast wasn’t subject to obtaining a permit, nor was a production for a nonprofit, no matter the size of the crew or amount of equipment required. From now on, it’s just “filming,” and whether or not you need a permit depends solely on how much your crew will impact the park. According to the NPS, the interim guidance will “eventually be replaced with regulations addressing filming activities that are consistent with the outcome of the litigation.” For now, anyone interested in filming in a park is still encouraged to contact that park directly beforehand.

As a video producer myself, navigating the lengthy application process and red tape has frequently outweighed the benefits of shooting on public lands, and in some cases made it impossible. That’s a shame, because these lands belong to everyone and are one of this country’s greatest assets. For the Pattiz brothers, being able to easily capture the beauty and wonder of the national parks helps them accomplish their mission of sharing the parks with the greater public.

“We’re of the strong belief that greater awareness leads to more protection,” Will says. “The reason we named it More than Just Parks is that they really are more than just parks, they’re something different to everybody, and they should be a place for inclusion—these places were set aside for everyone.”

I’m not sure that greater awareness leads to more protection, after all they are Parks already. And the argument that they are “set aside for everyone” seems like a slippery slope in terms of uses.

San Francisco Should Pay Yosemite the Dam Rent: PERC Report

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I ran across this interesting idea from Sara Sutherland at PERC. There are many dams on FS land. I wonder if it would make sense to harmonize regulations for dam permittees across BLM, NPS and FS, possibly with some kind of negotiated transition period? It’s interesting to think about the idea “are they paying “enough” and what you would base “enoughness” on. Sutherland has some ideas, including the benefits of a dam-free valley.

Summary:

In 2018, Yosemite National Park had the highest deferred maintenance backlog of any national park in the country, with $646 million worth of overdue maintenance projects. The park may have a long-overlooked source of funding to tap for maintaining and preserving the public’s access to its scenic grandeur: an outdated lease on part of its property.

The Hetch Hetchy Valley, located entirely within the park, provides water to San Francisco and other Bay Area communities. In addition, San Francisco receives approximately one-tenth of its power from hydroelectricity generated by the gravity-driven flow from the Hetch Hetchy Reservoir. The 1913 Raker Act authorized the unprecedented dam inside the park and also set the fee that the city pays to rent the entire valley in which the dam sits: $30,000 per year. It may be the worst contract in the history of the National Park Service.

While the lease price has remained constant over the past century, the value of the valley has not. Yosemite today is exceptionally congested—it is the fifth most visited national park—and restoring the Hetch Hetchy Valley would increase both the quantity and quality of recreational opportunities available to the park’s 4.5 million annual visitors. A benefits-transfer study conducted by a consulting firm calculated the potential recreational-use value of undamming the valley to be between $1.7 billion and $5.4 billion.

San Francisco’s water supply is also valuable. The city earns about $440 million annually from the sale of Hetch Hetchy water to its own customers and other municipalities. Thus, there is clearly a trade-off between keeping the dam and tearing it down. The former would continue to prevent recreation in the valley, while the latter would force the Bay Area to reassess its entire water supply. What is also clear is that under the current agreement, Yosemite, its visitors, and the American public are all losing.

In light of the park’s needs, the annual lease price San Francisco pays could be adjusted to raise revenue that could help maintain infrastructure inside the park, a move that would also be consistent with how other national parks structure their concessions and special-use contracts. Three methods can provide a range of potential lease prices.

A more equitable payment to the park from the city for its use of Hetch Hetchy water would provide enormous benefits for the 4.5 million people who visit the park each year. It is time to update the century-old arrangement between Yosemite and San Francisco.

Options to Adjust Hetch Hetchy Lease Price:

Account for inflation that has occured since the price was set by the Raker Act.
Treat San Francisco as a National Park Service concessioner and charge a franchise fee according to agency rules.
Set the annual price equal to the annual value of an undammed Hetch Hetchy Valley.

Rim Fire, logging and spotted owls

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Here is some timely recent research on what happens to spotted owls after a fire, in particular the Rim Fire which comes up often on this blog (thank you, Larry).  That discussion has often dealt with the effects of post-fire salvage logging, such as the discussion here.  This research discusses the effect of the condition of the forest before the fire on its value to owls after the fire.

This is important because of the argument by some that fires are bigger threat to the owls than cutting down trees to reduce fire risk.  I’ve only looked at this overview and the linked abstract, but it seemed like enough to generate some discussion.  In particular, it contrasts the pre-fire management of Yosemite National Park and the adjacent Stanislaus National Forest.

From the abstract:

Spotted owls persisted and nested within the fire perimeter throughout the four post-fire years of our study at rates similar to what we observed in areas of Yosemite that were unaffected by the fire…  Prior to the fire, spotted owls selected for areas of high canopy cover relative to the rest of the landscape; after the fire, even though territory centers shifted substantially from pre-fire locations, pre-fire canopy cover remained a stronger predictor of spotted owl presence than post-fire canopy cover, or any other pre- or post-fire habitat variables we assessed.

So removing canopy cover, which seems to be one of the goals of fuel reduction, would not benefit the owls even if it reduces fire risk, and it would adversely affect them whether there is a fire or not.

From the lead author:

California Spotted Owls can tolerate forest fire, but Schofield cautions that not all fires are created equal. Yosemite’s forests have not been commercially logged since the early 1900s and fire suppression efforts since the 1970s have been kept to a minimum. This results in a forest structure and fire regime that is distinct from what is found outside of the park.

“In Yosemite there is a diversity of forest habitat” explains Schofield, “This means the Rim Fire burned with a diversity of severities creating a range of post-fire habitat for owls to choose from.” The study notes that in portions of the adjacent Stanislaus National Forest that were also burned by the Rim Fire, burn severity was more homogenous likely due to the contrasting logging and fire management regime on the National Forest.

 

 

Feds and States and Parks and Forests and Visitors and Coronavirus.. Oh My!

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March 31, 2020 Colorado’s Mueller State Park
I’ve been trying to piece together coverage of the challenge to “get outside” but “stay at home,” including the specifics about the reasoning behind different State/Federal management of outdoor activities..

It’s hard to pick apart. There have been a variety of stories about why the National Parks should all be closed. Basically the story seems to be that the Interior Secretary should close them all, whereas the current policy appears to be decided locally (with some exceptions: for example, Rocky Mountain was closed early based on local concerns, Grand Canyon just a few days ago, despite the Secretary having been asked earlier).

Bill Gabbert in Wildfire Today had an explanation for why they should be closed:

Most of the NPS visitor centers are closed, but parks that are still open while entrance fees are suspended can still attract visitors to trails and viewpoints. Unless a park is physically closed by gates, park law enforcement officers still have to patrol in order to avoid the mayhem that occurred when employees were prevented from working during the government shutdown last year.

There has been much pushback to making Parks free during this time, but it does seem that would limit contact (not collecting fees). I would tend to think that some parks tend to have visitor problems and others not. I haven’t seen a report (yet, though it may be out there) of a park by park estimate of damage due to the government shutdown. As I said then, we have millions of acres of federal lands without regular law enforcement patrols on trails -FS and BLM- and I still wonder what it is about people who go to which National Parks and why they behave badly. With appropriate social science studies at the time, we might have learned more about this.

Outside Magazine ran this piece (which adheres to the same thinking as during the government shutdown):

Writing about all of this now is eerily reminiscent of writing about the shutdown’s impact on national parks last year. Then, we had reports of overcrowding and damage, followed by calls from various lawmakers and conservation organizations for a total closure. And then people started dying. Now, we have reports of social distancing measures not being followed, confusion over which services may or may not be available, and everyone from staff within the parks to lawmakers calling for a closure. At least people haven’t started dying in the parks, yet.

I’m not confused over whether services might be available.. I just look on the Park or Monument’s website. Again, are people who go to Parks less able to use the internet?
They argue that all should be closed for the safety of employees and gateway communities. And many, but not all, are closed. And many are big “destination” parks or monuments, but many are not. And some are close to communities. Two examples in Colorado are Florissant Fossil Beds and Colorado National Monument. So we might think it’s OK for locals to walk around (as long as they obey distancing guidelines) but not those from afar. But how far afar? And how would that be enforced?

Here’s what Florissant Fossil Beds says..

Give Some Space to Keep Safe
The trails at Florissant Fossil Beds are currently open. The park continues to monitor the COVID-19 situation and maintains high standards related to the health and wellness of staff and visitors. There is a pit toilet located in the visitor center parking lot which is currently the only restroom facility. It is being cleaned once a day M – F.

There’s the crowding concern (people not keeping their distance), the toilet concern (someone, employee or contractor, is cleaning them; people are going into them) and the travel concern. I think the idea is that people shouldn’t be traveling certain distances for fear of spreading or acquiring the virus at gas stations, bathrooms or other sites they otherwise wouldn’t go to. But suppose you have an electric car and don’t use inside toilets? Here’s a thought piece in High Country News about the ethics of getting outside.

Meanwhile, our Colorado State Parks are open:

Park visitor centers and CPW Area Offices also remain closed to the public at this time.
All Colorado State Parks non-campground outdoor areas of parks, including trails, boat ramps, marinas and shorelines remain open.
Please use cpwshop.com or the park’s self-service stations to purchase passes for day use.

Restrooms remain open and are regularly cleaned at this time.
Please bring your own hand sanitizer. There may be no running water available.

Are Colorado State employees calling for park shutdowns, but it’s not being reported?
Are people visiting Colorado’s state parks more well-behaved than people who go to National Parks?
Is the worry employees cleaning toilets, visitors exchanging germs in toilets, employees doing law enforcement, people behaving badly vis a vis social distancing or ?. Most FS trails where I am are not crowded and don’t have toilets, so it seems reasonable to keep them open. Of course, there is the pragmatic problem of how you would “close” a Forest and whether sending people out to enforce it is more unhealthy for employees than letting visitors infect each other. There are certainly many considerations that managers have not had the opportunity to consider before, many unknowns, and I for one would feel uncomfortable second-guessing local folks making the decisions.

Grand Canyon development proposal resurfaces on the Kaibab

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We’ve discussed the use of land exchanges that would facilitate the growth of urban areas by giving them more private land in logical growth areas using the example of Las Vegas.  At a different scale, the town of Tusayan appears to be an inholding in the Kaibab National Forest, which limits its growth opportunities.  They have been looking at a proposal to develop a nearby separate inholding (which the town owns a part of).   It would require a special use permit to for roads and utilities to cross national forest lands.  It has been controversial (attracting unwanted attention according to the town; the 2nd Twitter link works), and the town has just approved a revised proposal, which will be submitted to the Forest Service.  The Kaibab National Forest rejected the last proposal in 2016 as inconsistent with the requirements for a special use permit.  Here is a part of the rationale that relates to the forest plan:

CFR 251.54(e)(l)(ii) requires that the proposed use must be consistent, or can be made consistent, with the Kaibab Forest Plan. The Forest Plan envisions management at a landscape­ scale by taking an “all-lands approach,” and specifies strategies to achieve the desired conditions and objectives in the Plan, including working closely with partners and across administrative boundaries to meet common objectives. The development that would be enabled by authorization of the proposed use of NFS lands could substantially and adversely affect Tribal lands and the Grand Canyon National Park.

36 CFR 251.54(e)(l)(v) provides that the proposed use must not unreasonably interfere with the use of adjacent non-National Forest System lands. The FS received written comments from the National Park Service (NPS) through the Principal Deputy Assistant Secretary of the Interior for Fish Wildlife and Parks which pointed out that potential impacts to the Outstanding Universal Value of the Grand Canyon National Park (GCNP), either from the roads that would be authorized by easement or the reasonably foreseeable development on the two private properties that would be enabled by the roads and other facilities, are of concern. The GCNP also raised concerns in a meeting regarding impacts on infrastructure that they share with the Town of Tusayan. The NPS was concerned that any activity that would result in significant increases in visitation or occupation near the Park would affect the Park’s capacity to absorb the additional use.

The first rationale is an interesting “all-lands” interpretation of its forest plan to encompass the objectives of the National Park Service and tribal lands.  The second rationale stands on its own, but it also explains what those interests are.  It’s not obvious that the recent modifications in the proposal are going to address these concerns, so I expect we’ll be seeing more about this.  (Here is the CBD take on the original proposal.)

Another gas pipeline down the tubes?

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Since the NFS litigation reporter is apparently furloughed, here is something you might not want to miss …

In July the 4th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline (reported here and discussed here).   On December 13, the same court ruled against the George Washington and Monongahela National Forests for improperly amending their plans to create exceptions to 13 forest plan standards to allow the construction of the Atlantic Coast Pipeline.  Cowpasture River Preservation Association v. Forest Service again involved interpreting a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments. It also again involved circumstances where the Forest Service reversed itself regarding its concerns about the effects of a pipeline without justification.

Forest plan amendments to existing plans (that were not prepared pursuant to the 2012 Planning Rule) are subject to the substantive requirements of the 2012 Planning Rule when those requirements are directly related to the amendment. This may occur when the requirements are related to either the purpose or effects of the amendment(in a “substantial” way). The Forest Service found that relevant effects on soil, water, riparian, threatened and endangered species, and recreational and visual resources were mitigated, but ignored the purpose of the amendment, which was (as stated in the NEPA documents) to reduce the protection of those resources so the Pipeline could proceed. As stated by the court, “To say that a 2012 Planning Rule requirement protecting water resources (as one example) is not “directly related” to a Forest Plan amendment specifically relaxing protection for water resources is nonsense.”

The court rejected the argument that it is the purpose of the project that should be considered rather than the purpose of the amendment, and rejected the idea that these requirements do not apply to amendments limited to an individual project. It found, “If the Forest Service could circumvent the requirements of the 2012 Planning Rule simply by passing project-specific amendments on an ad hoc basis, both the substantive requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency requirement would be meaningless.” The court also suggested that there would be “substantial” adverse effects of this project that should lead to a conclusion that the amendments are “directly related,” and the 2012 Planning Rule requirements would apply. The court held: “The lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule — its own regulation intended to protect national forests — in order to accommodate the ACP project through national forest land on Atlantic’s timeline are striking, and inexplicable.”

The court also found a violation of forest plan goals, “because it failed to demonstrate that the ACP project’s needs could not be reasonably met on non-national forest lands.”   The FEIS did not address this question, but instead found that no national forest avoidance alternative “confers a significant environmental advantage over the proposed route.”   The court held that consistency with plan goals is required by the 2012 Planning Rule (even though the goals were not written when that Rule was in effect). The Forest had included the goals (which are also found in the Forest Service Manual) in its scoping material for the Pipeline project. The court held that the Forest Service “is not free to disregard the goal entirely — as the Forest Service apparently wishes to do here.”

The court also found violations of NEPA. The EIS was prepared by the Federal Energy Regulatory Commission (FERC), but the Forest Service had duty to independently review it. The Forest Service never explained why it was satisfied with the lack of off-forest alternative routes after it had said they were required. The Forest Service also failed to explain why it lost interest in landslide risks, erosion control and aquatic species that it had previously expressed concerns about. The court found, “the record before us readily leads to the conclusion that the Forest Service’s approval of the project “was a preordained decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this outcome.”

The court remanded the Forest Service decisions to grant the right of way to address these legal shortcomings. However, the court also found a potentially bigger problem: the Forest Service does not have the authority to grant a right of way across the Appalachian National Scenic Trail (necessary for the routes considered) because it is administered by the National Park Service, and the Park Service does not have authority to grant such a right of way at all. Thus this part of the Trump Administration’s “energy dominance” program could now be in the hands of a divided Congress.

Here is the line from the court that got the most media attention (includes a link to the opinion):

“We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”