NEPA

Beaverhead-Deerlodge Forest Plan NEPA not site-specific enough

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The Ninth Circuit Court of Appeals reversed the decision in the Beaverhead-Deerlodge (B-D) National Forest’s revised forest plan to designate areas for use by winter motorized vehicles. It found that the forest plan EIS failed to provide analysis that was site-specific enough to make an informed decision, as required by NEPA, and that the planning process did not comply with the “minimization” requirements of Executive Order 11644 for off-road vehicles, including evaluation of specific areas open to motorized vehicles.

This was a rare loss at the forest plan level on a NEPA issue.  While courts often accept more general NEPA analysis for programmatic decisions, this court recognized that the essence of forest plans is land allocation decisions.  Here it was important to know where winter range was in order to consider how the plan affected it or to propose alternatives for it.  The court stated that, “Without data on the location of the big game winter range, the public was severely limited in its ability to participate in the decision-making process.”  This principle should be applicable to other wildlife issues in plan revisions.

The holding on motorized use may also be precedent-setting.  It found that the plan ‘designated’ ‘areas open to snowmobile use.’  That made it subject to the executive order and to the Travel Management Rule (TMR) the FS adopted to implement the executive order.  The court stated, “What is required is that the Forest Service document how it evaluated and applied the data on an area by-area basis with the objective of minimizing impacts as specified in the TMR.”  It held that the Forest Service had instead deferred that level of analysis to subsequent travel planning.  The B-D plan had more site-specific direction for motorized use than many plans would have, but this holding could arguably apply to any forest plan components that identify areas in which motorized use would be allowed (especially where it is already occurring without prior compliance with the TMR).  This opinion blurs the distinction between forest planning and travel planning that the Forest Service has tried to maintain.

Clearwater travel plan remanded (again)

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Environmental plaintiffs successfully overturned the Clearwater National Forest travel plan in district court (newspaper coverage here). There are some implications for forest planning.

The court found the travel plan to be inconsistent with the forest plan’s requirement for elk habitat effectiveness (EHE) because it used the same methodology to evaluate EHE that was used for the forest plan. The methodology currently used (that the Forest Service helped develop) had added trails with motorized use to its road density calculations. The court considered this to be the best available science, which must be used in determining consistency with the forest plan, even though that creates (as the Forest Service put it) a ‘moving target’ for NFMA consistency. That’s an interesting argument for the Forest Service to make because the trend is for forest plans to defer more determinations to the project level, instead of having more specific direction in a forest plan.

The court also explained what is needed to demonstrate that an action ‘minimizes’ some outcome. (This case was specifically about ‘minimization’ criteria in an Executive Order related to motorized use, but the term is commonly found in forest plans.) Project documentation must explain exactly how a project was designed to meet the minimization criteria. General discussion of the criteria was not sufficient in this case.

The court upheld the NEPA analysis for the travel plan. However, it may have given the Forest Service a break by basing that decision on the fact that the decision was for an ‘entire forest’ and that it was ‘programmatic.’ The idea that NEPA analysis can be less demanding for broad-scale or programmatic decisions stems from the existence of another NEPA decision prior to actual impacts. While that is true for decisions to close roads (closure orders), it is not true for decisions to open roads.

(Since the Clearwater previously settled with motorized users in a case before a different Idaho judge, who kept the travel plan in effect, I’m not sure where this remand leaves travel planning on the Clearwater – especially in the context of ongoing revision of the Nez Perce-Clearwater forest plan.)

How the sue and settle process really works

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This 6-page opinion includes a discussion of how courts decide whether to approve a consent decree.

The case also demonstrates the ability of intervenors to influence the outcome.  In this case environmental groups intervened in a lawsuit by motorized users over a travel plan decision.  Because of the intervenors, the court refused to approve the part of the consent decree that would have vacated that travel plan and allowed motorized use to continue while the Forest Service reconsidered the travel plan.  The intervenors kept the plaintiffs from getting what they really wanted.  (But the plaintiffs or the Forest Service could now reject the consent decree and continue the lawsuit.)

The court poses a hypothetical at the end:  “This analysis would change, however, if upon reconsideration the Forest Service finds flaws in the 2011 Travel Plan requiring changes. At that point, a strong argument could be made that the Plan cannot remain intact and should be vacated, reinstating the 1987 Forest Plan management scheme.”  The problem with this result would be that this travel plan is necessary to accomplish the 1987 forest plan direction to protect wilderness character, and reverting to the no-action alternative would be inconsistent with the forest plan.  That creates an equally strong argument the other way (in my opinion).

More Colt Summit Legal Fun

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Just when you thought there was no more fun to be had with Colt Summit, our colleague Eric Anderson has written a law review article that will be published this spring in the “Crit” — an alternative law review at the U of Idaho. Basically, it’s an in depth overview of the 9th circuit’s position on cumulative effects of past actions under NEPA — and why Malloy got it wrong in the Colt Summit decision. I think it shows how obscure some of this is to others outside the NEPA courtroom, and how difficult it can be to do a legally sufficient analysis.

Here it is.

Oh, in case you’re curious about Eric Anderson, here’s a bio of sorts..

Bio: I’m a native of Tropical Montana — 16 miles west of Lolo for those old enough to remember the bumper sticker— who currently resides in Bonners Ferry ID. I am in my final semester as a concurrent JD/MS candidate at the University of Idaho. I will graduate with a certificate in Natural Resource & Environmental Law; and my M.S. is in Bioregional Planning & Community Design. Over the last 8-9 summers I’ve worked as a crew boss for a U.S. Forest Service Trail Crew. I’m a bit of NEPA nerd and when I don’t have my nose in a book or typing away on my Mac, I can usually be found playing on the side of a mountain or in a river somewhere with my beautiful wife.

Rim Fire Update

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Apparently, enough of the hazard trees within the Rim Fire on the Stanislaus NF have been cut so that the travel ban has finally been lifted, after more than a year. I heard one report that says that the litigation has failed at the District Court level, losing their pleas to stop the logging three times. The article below includes the Appeals Court but, I doubt that an appeal has been seen in court yet. It seems too soon after the District Court decision for the appeal to be decided.

http://www.calforests.org/rim-fire-update-final-motion-halt-restoration-forestry-rim-fire-denied/

P9232907-web

 

Since the Rim Fire tore through the area and devoured over 250, 000 square miles of National, State and private forested land, the community has come together to put together a solution with positive environmental, economical and social sense. The whole effort to restore forests has been very successful due to cooperation of a diverse group of individuals, organizations and government agencies.

(Edit: Thanks to Matt for pointing out the acres/square miles error. That should be 250,000 acres.)

With a monster storm approaching California, we should be seeing some catastrophic erosion coming from the Rim and King Fire areas. Of course, very little can be done to prevent erosion on the steep slopes of the canyons with high burn intensity. Standing snags tend to channel water, while branches and twigs on the ground can hold back a surprising amount of soil. This flood event would have been great to document through repeat photography but, it appears that opportunity will be lost, too.

Bark beetle activity has also spiked where I live, northwest of the Rim Fire.

4FRI DEIS Released!

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4friHere’re the FS documents, below is a press release from
4FRI.

The 4FRI Stakeholder Group is in the process of reviewing this draft decision. We have worked closely with the U.S. Forest Service in this planning effort, which began in 2012. It is the largest Environmental Impact Statement for forest restoration in the country,” stated Diane Vosick, current co-chair of the 4FRI stakeholder group and Director of Policy and Partnerships for the Ecological Restoration Institute at Northern Arizona University, adding “while we are currently undergoing review of the decision details, we are unified in our support of restoring our northern Arizona National Forests.”

“This plan will help guarantee a supply of wood for the businesses who are investing in wood manufacturing, as well as create much-needed jobs,” said Steve Gatewood, the other co-chair of the stakeholder group and a longstanding member of the Greater Flagstaff Forest Partnership. “It is the first of at least two large plans that will eventually encompass 2.4 million acres of northern Arizona forests.”

The 4FRI landscape has been broken into two planning areas: this first plan encompasses much of the Coconino and South Kaibab forests (nearly one million acres), and the second plan, currently in the pre-planning stages, will incorporate 1.4 million acres of eastern Arizona pine forests on the Apache-Sitgreaves and the Tonto.

This draft decision summarizes the types of treatments that are intended to restore forests to a condition that protects communities and watersheds from unnatural catastrophic fire events; improve forest health; enhance wildlife habitat; and restore the beneficial role of managed and natural low-intensity ground fires. For more information on 4FRI, please visit www.4fri.org.

Is NEPA supposed to be democratic?

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This article on the Desert Renewable Energy Conservation Plan raises this question based on a rather extreme case of intimidating government documents.  But it comes up on much simpler NEPA efforts where the agency states that the NEPA process is not about the number of “votes” received on a project.  My legalistic response is that NEPA is about getting the facts right to form opinions, not about the opinions themselves, and that opinions can be offered at any time based on any set of facts (or lack thereof).  But NEPA is also about providing both useable information and sufficient time for both the decision-maker and the public to understand it before a decision is made.

(I don’t know if there are many NEPA-nerds on this blog, and I don’t remember seeing any previous discussions, but I saw it was a ‘category.’)

Citizen forest planners using GIS

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This seems like a strange source for hearing about evolution in forest planning policy, but here is what the Region 6 regional forester is telling the world.  It’s not something I remember serious discussion about when the 2012 Rule was developed, nor have I heard of it being done anywhere.  Has anyone participated in something like this in forest planning?  (I’ve added the bold type.)

Connoughton: Public policy for each national forest is set by law. The national forest plan follows the procedures of the National Environment Policy Act, the Endangered Species Act, and a few other pieces of legislation. The advantage of collaborating on a GIS platform is that people have data, tools, and maps that give them greater insight, and they can ask design questions. On the platform, you are in a spatial environment that allows you to display the problem, query one another’s ideas, and look at the logical outcome. This type of dialog becomes a mechanism for designing alternatives. Instead of forest service specialists putting together alternatives that are mandatory under the National Environmental Policy Act, they could collaboratively engage in setting public policy and ask design questions.

Boy, what an advance that is. Otherwise, we are drawing public policy from inside the government and the outcome does not capture people’s interest. Why not turn the ability to design public policy over to them. The foundation of policy is spatial. Its design is largely supported by sets of spatial information. This is very liberating to people who otherwise have had to depend on the government to create the forest plan.

Turning forest information over to people in a way they can understand is empowering. The responsibility of government is to be faithful and trusting to the people. The people then use tools for designing alternative solutions and public policies.

NEPA abuse in travel planning

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The basic requirement of NEPA is to evaluate environmental impacts before taking action.  Thus, the Payette National Forest prepared an EIS before implementing a travel management plan.  Part of that decision included closing all user-created roads until their effects could be site-specifically evaluated.

The Forest Service was sued for violating NEPA “because they fail to disclose and evaluate the impacts of 972 miles of unauthorized roads” (Valley County, Idaho v. USDA).  The judge was concerned that, “motorized vehicle use, particularly on roads with stream crossings or that run along streams, damages watershed conditions”  (effects of closing roads on motorized users were not an issue in this opinion).  The court borrowed reasoning from cases about using ‘proxies’ for the effects of timber sales to agree with the plaintiffs.  The parties are now discussing the appropriate remedy.

What would you advise?  Should the Forest Service re-open the closed roads while they re-evaluate the effects on watersheds of leaving them open?  Or should they close them until … ?

I think the judge took his eye off the ball here and is not looking at the effects of the action the Forest Service is taking.  The action is to close the roads; the effects at issue are the effects of NOT closing them.   The court’s confusion could lead to NEPA being misused as a barrier to achieving its intended purpose as “our basic national charter for protection of the environment” (40 CFR 1500.1).

Tongass Timber Sale Update: How an endemic species can halt a timber sale

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Earlier in September, a press release from the Greater Southeast Alaska Conservation Community (GSACC) was shared with this blog. It opened with:

On August 16, GSACC and four other organizations filed an administrative appeal of the Tongass Forest Supervisor’s decision to proceed with the Big Thorne timber project. The appeal went to to the next highest level in the agency, Regional Forester Beth Pendleton. The appeal is known as Cascadia Wildlands et al. (2013), and other co-appellants are Greenpeace, Center for Biological Diversity and Tongass Conservation Society.

The project would log 148 million board feet of timber [enough to fill 29,600 log trucks], including over 6,000 acres of old-growth forest from heavily hammered Prince of Wales Island. 46 miles of new logging roads would be built and another 36 miles would be reconstructed.

Today, we get an update on the Big Thorne timber sale on the Tongass National Forest in Alaska in the form of this article, written by Dr. Natalie Dawson, one of GSACC’s board members.

Wolf

“When you spend much time on islands with naturalists you will tend to hear two words in particular an awful lot: ‘endemic’ and ‘exotic’. Three if you count ‘disaster’. An ‘endemic’ species of plant or animal is one that is native to an island or region and is found nowhere else at all.”
-From Last Chance to See by Douglas Adams, author of A Hitchhiker’s Guide to the Galaxy

by Natalie Dawson

On the Tongass National Forest, we hear mostly about trees – whether it be discussions about board feet, acres of old growth, percentage of forest converted to “second-growth” or “the matrix”[*], our conversations tend to focus on the dominant plant species group that defines the rare “coastal temperate rainforest” biome. However, the Tongass is more than a forest, it is a conglomerate of islands, islands of different sizes, islands of different geologic and cultural histories, islands with or without black bears, grizzly bears, or wolves, the iconic species of Alaska. Because of these islands, there are unique, or, endemic, species of various size, shape and color across the islands. Though they have played a minimal role in management throughout the course of Tongass history, they are now rightfully finding their place in the spotlight thanks to a recent decision by regional forester Beth Pendleton.

On Monday (Sept. 30), the US Forest Service announced its decision to reconsider the Big Thorne timber project. This project would have been the largest timber project on the Tongass National Forest in twenty years, taking 6,200 acres of old growth forest (trees up to 800 years old, 100 feet tall, and 12 feet in diameter) from Prince of Wales Island, an island that has suffered the most intense logging in the region over the past six decades. It is also an island that is home to endemic animals found nowhere else in the world.

Citizens of southeast Alaska and environmental organizations including GSACC jointly filed an administrative appeal on the Big Thorne timber project on August 16th of this year. Monday’s response comes directly from regional forester Beth Pendleton. In the appeal, Pendleton cited an expert declaration written by Dave Person, a former Alaska Department of Fish and Game (ADFG) biologist with over 22 years of experience studying endemic Alexander Archipelago wolves on Prince of Wales Island, with most of his research occurring within the Big Thorne project area. Pendleton cited Person’s conclusion that “the Big Thorne timber sale, if implemented, represents the final straw that will break the back of a sustainable wolf-deer predator-prey ecological community on Prince of Wales Island…” Her letter states, “This is new information that I cannot ignore.” The response to the appeal requires significant review of the timber project before it can move forward, including cooperative engagement between the Tongass National Forest and the Interagency Wolf Task Force to evaluate whether Dr. Person’s statement represents “significant new circumstances or information relevant to” cumulative effects on wolves (including both direct mortality and habitat).

As one of my students today in class asked me pointedly, “So what does all this mean?” Well, it means that the largest potential timber sale in recent history on our nation’s largest national forest, on the third largest island under U.S. ownership, is temporarily halted under administrative processes due to an endemic species. It does not mean that this area is protected. It does not mean, that our work is done. Pending the outcome from conversations between the Forest Supervisor and the Interagency Wolf Task Force, especially under the current political climate within the state of Alaska, we may have plenty to keep us busy in the near future. It does mean that, even if only briefly, the endemic mammals of the Tongass National Forest received a most deserving moment in the spotlight. This could result in a sea-change in how the Tongass National Forest is managed.

This also means that science is being given a chance to play an important role in an administrative decision on our nation’s public lands, and two endemic species, the Alexander Archipelago wolf, and its primary prey species, the Sitka Black-Tailed deer, are forcing federal and state agency personnel to reconsider their actions. Science must continue to play an important role in the future of all activities on Prince of Wales Island. It is home to many endemic animals found only on a small percentage of islands on the Tongass National Forest, and nowhere else in the world. This lineup includes the Prince of Wales Island flying squirrel, the spruce grouse, the Haida ermine, and potentially the Pacific marten, which was only recently discovered on nearby Dall Island. The future of the Tongass timber program and human development on these complex islands are inextricably tied to ensuring a future for all other species in one of the world’s only remaining coastal temperate rainforests.
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Dr. Natalie Dawson has done years of field work on endemic mammals throughout much of Southeast Alaska, studying their population sizes and distributions through field and laboratory investigations, and has published peer-reviewed scientific papers on these topics. She presently is director of the Wilderness Institute at the University of Montana and a professor in the College of Forestry and Conservation.

[*] What is the matrix? The conservation strategy in the Tongass Forest Plan establishes streamside buffers (no logging) and designates minimal old growth reserves, in an attempt to ensure that wildlife species on the Tongass remain viable. (Whether the strategy is sufficient for this is at best questionable.) The matrix is the expanse of habitat that is allocated to development (such as logging) or that is already developed, and which surrounds those patches of protected habitat.

UPDATE: Readers may notice that in the comments section a claim is made that the Sitka black-tailed deer are not endemic, but were were introduced. The Sitka black-tailed deer (Odocdileus hemionus sitkensis) were not introduced to Southeast Alaska; the Sitka black-tailed deer is indeed an indigenous, endemic species there.

Also, another commenter suggested referring to the article on the GSACC website, as at the bottom of the article one can find much more information about the Big Thorne timber sale and also the declaration of Dr. David Person regarding Big Thorne deer, wolf impacts. Thanks.