NEPA

NEPA : What’s it to Ya?

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forest_service_decisions_law

Warning: We are exploring the hinterlands of NEPA-Nerd country here… but if people are really interested…

Bob Berwyn raised some points about NEPA in this comment, which reminded me of many discussions the FS NEPA folks have had about “when we talk about NEPA do we mean section 101 of the statute (promote harmony,etc.), do we mean a document, a process, or a framework for decision-making?

I remembered lots of conversations about that among NEPA practitioners, especially during the A-76 process. A-76, for those of you blessed to not know what it is, was the bureaucratic equivalent of “which of your children will you sacrifice to the Gods.” This God being the theological proposition that all things contracted are cheaper and more effective than all things in-house. Somehow it was decided that people involved with NEPA would be sacrificed (err.. sacrifice would be “studied” by a group of Beltway Bandits who were seen to be experts in “Competitive Sourcing.”)

I may remember some of the details incorrectly, but that’s my memory. Any other survivors of this period are invited to comment.

Another blog contributor remembered this article, which I think lays some of the ideas out (for the record, I neither agree with Dave Iverson nor Susan Y-S (who was the Director of EMC, possibly at that time). But I think it’s worth all interested parties hearing this more or less internal discussion.

Here’s the link. This links to the Forest Policy-Forest Practice site, which was in many ways the antecedent of this blog.

Grijalva’s 2008 Report on Bush Administration Public Land “Assault”

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I think everyone should take a look at this report submitted by Congressman Grijalva. Especially those of us who were involved in different things decried therein.

Running through it briefly, I noticed this..

NPS Employee Morale Near All-Time Low
A poll of NPS employees conducted by the Campaign to Protect America’s Lands and the Coalition of Concerned National Park Service Retirees found that, of 1,361 respondents surveyed, 84% expressed a “great deal of concern” about the effect of current policies on national parks; 59% said the situation had worsened over the last few years; and 79% said morale had declined over the same period.

Perhaps there is a need for a Coalition of Concerned National Forest Service Retirees perhaps to fund more in-depth studies of FS morale issues? Or existing organizations might take on some of this work. Here’s a link to the Coalition of Park Service Retirees.

Here’s a link to some testimony..

which includes this quote:

This deficiency is pointed out in the Partnership for Public Service 2007 Rankings of “The Best Places to Work in the Federal Government.” In this survey, NPS ranked 203 out of 222. Several of the other items with low rankings also may result from an inadequate employee development program.
One of the most significant deficiencies is “effective leadership” (ranked 191 of 222 in the aforementioned survey). The general belief in the NPS is that there are two parts to this perceived deficiency:
• Inadequate training and development of lower-level (first- and second-line) supervisors; and
• Ineffective and unprincipled leadership practices and decisions by high-level agency leaders, particularly political appointees.

This does sound kind of familiar to the FS, although “unprincipled” doesn’t sound like FS language.
Well, that was interesting, but a bit off track…

So I know some of the readers of this blog were involved in the 2005 Rule, so I picked this out.

On January 5, 2005, the Forest Service published the 2005 planning rule (70 CFR 1023) establishing procedures for National Forest System compliance with the National Forest Management Act (NFMA). The Bush administration set out to gut protections and promulgated final rules intended to completely overhaul the forest management planning process by abolishing mandatory protections for wildlife and habitat and eliminating public input from the planning process. The rule also would exempt the plans from the Endangered Species Act (ESA). This was all part of an intensive effort by the administration to ramp up logging and mining, significantly, on public land.

OK, well maybe “abolishing protections” is viability..but public input was not “eliminated”. It was actually required.. So that is er… untrue.

There are many fun quotes in there.

NEPA Rollbacks by the Forest Service
According to the Congressional Research Service, the bulk of the efforts to amend NEPA have been directed at the six federal agencies that tend to produce the most environmental impact statements (EIS); the Forest Service, Federal Highways Administration, Federal Aviation Administration, agencies within the Department of the Interior, and the Army Corps of Engineers. To date, twenty-eight administrative efforts related to NEPA ―reform have been finalized. The Forest Service has made 8 changes to NEPA procedures, the most of any federal agency researched

As you all know, I used to work in NEPA in DC and I don’t even know what this means in terms of the eight changes… it sounds bad, though 😉 . Maybe I could argue that it wasn’t true if I had the vaguest idea what they are talking about. Gee, the people/agencies who do most of the work care most about improving processes. Now why would that be?

or this one:

As of 2003, the Forest Service had only one categorical exclusion for vegetation management activities involving timber stand or wildlife habitat improvement. However, in 2003 and 2004 under the Bush Administration, the Forest Service added four new vegetation management categorical exclusions: (1) salvage of dead or dying trees up to 250 acres, (2) timber harvest of live trees up to 70 acres, (3) hazardous fuels reduction up to 5,500 acres, and (4) removal of insect or disease infested trees up to 250 acres.

A more experienced person might see a different pattern.. from the 2003 Federal Register Notice here. Note: I also worked on the Limited Timber Harvest CE so that’s why it’s easy for me to know that the categories weren’t really “new.”

On September 18, 1998, a lawsuit was filed against the Forest Service arguing that the 1992 categorical exclusions were improperly promulgated. On September 28, 1999, the United States District Court for the Southern District of Illinois found that the categorical exclusions were properly promulgated.
However, the court found insufficient evidence in the record to support the agency’s decision to set the volume limits in Categorical Exclusion 4 at 250,000 board feet of merchantable wood products for timber harvest and 1 million board feet of merchantable wood products for salvage. Accordingly,
the court declared Categorical Exclusion 4 in section 31.2 of Chapter 30 FSH 1909.15 null and void and enjoined the agency from its further use.

It’s hard for me to believe that anyone knowledgeable could write this..

The Bush Administration claimed environmentalists used the appeals process to delay thinning projects to reduce fire risk, however a 2001 study by the Government Accountability Office found that only 1 percent of hazardous fuels reduction projects were appealed.

I think we see much evidence, even on this blog, that thinning projects have been delayed or stopped, and the Bush Administration is long gone.

Also

During the past nearly 8 years of the Bush Administration, the growing costs of wildland fire suppression have consumed major parts of the Forest Service budget, and other critical programs have been cut.

Spending related to fires continues to account for an ever-larger percentage of the Forest Service budget. In 1991, wildland fire management was 13% of the overall Forest Service budget; and today it is nearly 48%. The skyrocketing cost of fighting fires has forced drastic reductions in other Forest Service accounts, a trend continued yearly in Forest Service budget requests under the Bush Administration. Ironically, many of these budget requests have included cuts to critical fire prevention programs in the face of ever-worsening fire seasons. Even more troublesome, the Forest Service has had to ―Rob Peter to Pay Paul by borrowing funds from other critical Forest Service programs to cover the escalating costs of fire suppression.

Well, I’m glad that’s been fixed ;)!

Note: I am not saying or implying that this administration’s performance is sub-par. All I’m pointing out is that partisanizing difficult problems, that require all of us to work together to solve, does not really help and actually, in some cases, makes the environment worse while people are litigating or fighting to get elected, rather than finding a policy that works across the aisle. I know that the Congress’s work tends to be about theatrical party-bashing instead of thoughtful policy-making, but still..

When To Do an EIS for a Regulation?

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EIS’s for regulations can be expensive. Yet it seems like sometimes it’s useful. A concerned citizen might ask, “is there some interagency (say CEQ) guideline as when to do such an investment?” or “is it an artifact of case law and different for each kind of action by each kind of agency?” Sort of a patchwork quilt of court rulings?

My instinct based on common sense would go something like, roadless regulations might make sense to do because there is something that can be projected and analyzed (well, more or less, guessed at, what you might have done, but now won’t do). Planning regulation not so much. Yet the Forest Service spend megabucks analyzing the 2008 and 2012 planning rules. Meanwhile, the EPA “forest” roads regulation has no EIS.

It appears to me that the Planning Rule, is an outlier then. My memory is fading for some of these things, but I think the FS was required to do one as an outcome of a court case. I did find this letter under scoping comments for an EIS for the 2005 Rule, which said it was Citizens for Better Forestry et al. v. USDA.

Can you think of other examples? What would be your “common sense” approach?

4FRI Update:Controversial Forest Restoration Contractor Draws Vote Of Support

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Helicopter on Wallow Fire
Here’s an article in the Payson Roundup from Saturday. Below is an excerpt.

Gila County Supervisor Tommie Martin — one of the driving forces in the 4FRI movement — was among those openly questioning whether Pioneer had the financing or expertise to undertake the massive thinning project, which depend on the contractor building bio-fuel plants and mills that could turn a profit on millions of saplings and small trees.
#Locked in a campaign for re-election now, she says her doubts about Pioneer’s financing remain — but the effort now relies on Pioneer’s success. Martin has played a leadership role in the effort to convince the U.S. Forest Service to thin fire-prone thickets on the outskirts of Rim Country communities. She has also spearheaded the effort to post water-filled bladders strategically throughout the region to enable fire trucks and firefighting helicopters to quickly fill up storage tanks to contain brush fires.
#Meanwhile, other recent developments have advanced the effort to use a revitalized timber industry to thin millions of acres in Northern Arizona where a century of grazing and fire suppression have created an overgrown, tree-choked forest.
#Tree densities across most of the ponderosa pine forests of Northern Arizona have increased from perhaps 30 per acre to closer to 800 per acre in the past century, according to researchers from Northern Arizona University. A once-open, fire-adapted forest now generates an increasing number of massive crown fires, which threaten to incinerate forested communities.
#It costs up to $1,000 per acre to thin and burn off the slash piles, which means it would cost taxpayers about $6 billion annually to thin those forests by hand. The 4FRI approach would give private contractors a guaranteed 10- or 20-year supply of mostly small-diameter trees as an inducement to invest millions in building mills and power plants that could turn a profit on the vast oversupply of small trees.
#The 4FRI approach could get a boost in November if Flagstaff voters approve a $10 million bond issue to raise money to support forest-thinning projects in the Lake Mary watershed. Backers say that a crown fire that killed all the trees and scorched the soil would result in a dramatic increase in silt building up in Lake Mary, endangering Flagstaff’s already precarious water supply.
#The Schultz Fire two years ago demonstrated the risk to the city. The fire roared through an area that had been earmarked for a 4FRI project. The monsoon rains that followed caused mudslides that inflicted millions of dollars of additional damage on homes.

However, the Forest Service adopted many of the recommendations of the Stakeholder Group, but refused to commit to the preservation of most of the larger trees. Forest Service biologists reasoned that in some areas those larger trees exist in relatively dense clusters.
#That refusal to set a clear size limit on the trees caused concern among some members of the Stakeholder Group, including Martin — who found herself in the unusual position of agreeing with the Centers for Biological Diversity, which had spent years suing to block timber projects on the grounds they continued to target the big, fire-resistant trees.
#The selection of Pioneer after almost two years of study and delay initially posed a near-mutiny among the Stakeholder Group. Pioneer actually offered to pay the Forest Service millions less for the bid than did the contractor who had spent years working with the Stakeholder Group. Moreover, Pioneer omitted any money for monitoring whether the thinning projects had the desired impact on wildlife and watersheds.
#Martin also raised concerns about whether Pioneer had enough financing — and a business plan that would yield a profit on turning small trees into energy and into furniture.
#Forest Service officials in the Southwestern Regional Office in New Mexico made the selection, without direct input from the Stakeholder’s Group.
#Pioneer has said it remains on track to start work in the spring. Marlin Johnson said the company will start off with already-prepared timber sales and send the wood it harvests to existing mills, while the company continues to line up financing for its own mills.
#The company plans to build a 500-acre plant near Winslow, which will convert small trees into finger-jointed materials, like furniture and other wood products. The company also plans to build a bio-diesel fuel plant, which would turn brush and scraps into diesel.
#Johnson noted that Western Energy Solutions/Concord Blue USA will build and operate the bio-diesel plant.
#However, Pioneer has yet to announce any firm commitment for financing of the thinning projects or the Winslow plant.

I’ve heard many times that groups think “you should never take big trees,” e.g. diameter limits But if big trees are in a clump, and you are trying to thin trees, then to get fewer trees in the clump you would have to take out big trees. I’d be interested to have a discussion with someone with this point of view and see what their side of the story is.. that is.. the “no big trees” point of view.

Indian Valley Meadow Restoration

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Indian Valley, part of the Amador Ranger District, Eldorado National Forest, is being restored as a high elevation meadow, after decades of misuse. Grazing has ceased but, its impacts still linger. In the past, willows were removed and water was channeled away, causing increased erosion of these shallow and fragile soils. The water table has been lowered and the meadow hasn’t been able to support the vegetation that it used to.

Concentrating runoff by channeling the water causes increased erosion, especially when we have rain on snow events. There were significant impacts from the winter of 1996. This project aims to get the water to spread out, linger, and re-charge the water-holding capacity of up to 500 acres.

A system of catchment ponds, compacted soil plugs, and native plant re-vegetation will cause snowmelt runoff to spread out and slow the erosive power of concentrated water. This project has a history of being de-funded and handed off but, all things came together when Coca Cola offered up some cash, which led to some additional matching funds and collaboration. The Ranger District had to jump through all the NEPA hoops, as surveys had to be completed for endangered willow flycatchers, frogs and toads. The one impact they could not remedy is a historic road, which travels across the meadow. Relocation was made impossible, due to archaeological sites. Removal or closure would be politically impossible.

The willows have made a great comeback, since grazing ended. However, you can clearly see that the foreground vegetation is quite sparse. Raising the water table a few feet will lead to meadow restoration. The numerous braided side channels would re-charge the water table. There appears to be one of the historic man-made channels in this picture.

Here is what appears to be one of the natural side channels, which no longer is supplied with water, due to lowered water table, erosion, and channeling of the water. This restoration project appears to be a win-win situation for everyone.

Here is a non-Forest Service link to the project:

http://www.americanrivers.org/newsroom/blog/lhunt-20120920-indian-valley-meadow-restoration.html

Sierra Institute’s Response to the Economic Analysis of the Critical Habitat Designation for Northern Spotted Owl

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Context:

The US Fish and Wildlife Service contracted with a group called Industrial Economics out of Cambridge Massachusetts, to do the socioeconomic analysis of the designation of critical habitat for the northern spotted owl.

The Sierra Institute was commissioned by the National Forest Counties and Schools Coalition to provide third-party analysis.

Here is a link to the page that has the Sierra Institute report, the Executive Summary, and conclusions, and an excerpt from the Executive Summary.

The purpose of this report is to review and provide comments on the May 29, 2012 draft report by Industrial Economics, “Critical Habitat Designation for the Northern Spotted Owl,” prepared for the U.S. Fish and Wildlife Service.

Industrial Economics’ assessment is insufficient in its documentation of cumulative socioeconomic impacts and current socioeconomic conditions. Their interpretation of the charge of “determining whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation” is overly
narrow. As an assessment, the report does not comport with sound socioeconomic assessment science and lacks a sufficiently comprehensive evaluation of potential impacts.

While acknowledging a loss of over 30,000 jobs in the timber industry from 1990 to 2010, Industrial Economics argues that these loses were offset by regional population gains of 15% and an 18% employment increase in the decade of the 1990s. Industrial Economics errs by assuming: 1) job gains in the 1990s offset job losses in the 2000s, 2) regional population and job increases directly offset timber industry job declines, and 3) employment gains (and
losses) are equally distributed across the region. They report regional job increases of only 3% in the 2000s, and do so without analyzing impacts associated with the Great Recession, which hit hard many of counties where critical habitat areas are designated.

In discussing timber harvest impacts, Industrial Economics bases its incremental change analysis on a period in which there is a severe downturn in the economy and wood products industry. This results in an undercount of likely impacts. Estimates of harvest totals are generalized and not linked to subunit timber harvest totals, resulting in estimates that, as they acknowledge, “could vary materially from future actual timber harvest…”

Because of the shortcomings of Industrial Economics’ report as a socioeconomic assessment, the Sierra Institute for Community and Environment provides additional analysis and review of socioeconomic conditions. This is done also to improve the understanding of socioeconomic changes that have taken place since 1990 and the potential impacts of
northern spotted owl critical habitat area designation of almost 14 million acres across the California-Oregon-Washington northern spotted owl region. Designation of this amount of land as critical habitat area requires deeper and more comprehensive analysis.

and

Case studies, two in California and three each in Oregon and Washington, were conducted to better understand socioeconomic changes and current socioeconomic conditions “on the ground.” Some key findings from these cases include in California:
• Siskiyou County lost all its saw mills, has seen its population age, and has lost eight schools, challenging the county to provide for the remaining students and reverse the loss of young families.
• In Humboldt County there are powerfully suggestive relationships between mill closures and student impoverishment as reflected in Free and Reduced Price Meal (FRPM) enrollment rates. This county has suffered dramatic declines in its goodsproducing sector, with the manufacturing subsector losing 65% of its 1990 jobs by 2011.
In Oregon:
• Tillamook County has 24% of its children living in poverty, and 39% living in singleparent households, almost double the national average.
• Douglas County has 31% of its children living in poverty – twice the national average and 34% in single-parent households.
• In both of these counties, but especially in Douglas County, there are significant declines in manufacturing jobs, particularly since 2008. Free and Reduced Priced Meal participation rates increased over the last four years as well, some schools by almost 20 percent.
• Josephine County, over the last several decades saw forestry and logging jobs decline by 80%. Wages have stagnated and are two-thirds of the Oregon average. The county now ranks near the bottom of Oregon counties in health indicators and FRPM participation rate for the county is 70%.
In Washington:
• Grays Harbor County Natural Resources and Mining jobs declined by over 50% and
Forestry and logging jobs by just under 70% from 1990 to 2010. The county is near the bottom of the health rankings for counties in the state. FRPM participation rates for the county exceed 60%, with one school district at 92% in 2011 and another at 88%; the lowest rate is 41%, reflecting the considerable differences across the county.
• Skamania County has 90% of its land in federal ownership, and 59% of the land in the county is designated as critical habitat area. Natural resource and manufacturing jobs have declined by over 50% over the last 20 years, though service industry jobs have increased dramatically during this period.
* * *
Timber receipts and, more recently, the Secure Rural School and Community Self-Determination Act (SRS) payments to replace lost timber receipts to counties and schools have been historically important. In California, on average, Humboldt County Schools received just under 5% of their funding through SRS; Siskiyou received on average just
under 7%; and Trinity County received 15%. In Oregon, U.S. Forest Service SRS funding has provided on average 23% of county road budgets, with six counties receiving over 40% Response to the Economic Analysis of Critical Habitat Designation for The Northern Spotted Owl of their total road budget. Though dramatically lower in 2011, SRS payments comprised 40% or more of Skamania County general fund throughout the 2000s. In Oregon O&C counties, the Bureau of Land Management contribution to county budgets has been significant. In Douglas County in 2009 it comprised 17% of total county revenues and in Jackson County, it makes up 7% of total county revenues.
Eighteen counties received SRS O&C funding that goes directly to county general funds.
SRS is scheduled to expire in 2013. Loss of these funds will challenge already financially cash-strapped counties and school districts.
The time has long since past that we “reconcile” what Industrial Economics’ terms in its report as “competing economic and conservation goals.” Newer approaches address forestry as a “triple-bottom-line” endeavor—one in which economy, environmental, and community (or equity) benefits are all a part and integrated. This approach is not about trading off
harvests at the expense of the environment, or environmental outcomes with community and economic interests, but integrating them in ways that advance them collectively. The tenets of what Industrial Economics calls “ecological forestry” discussed in the report are suggestive, but remain too narrow as presented.

Note from Sharon: So the topic of job losses in the PNW has been discussed heatedly since I left there in the 80s. In the interest of understanding the impacts of the proposed action, it seems like this is of enough importance that I would yard up the economists in the PNW area who have worked on it to review it, and have the discussion in a public forum. The stakes are too high for any lesser form of information.

I also have to wonder why this group was chosen to do the analysis. Did more local economics groups not compete? Did they ask for too much money?

My main experience with large EIS’s (and longest!) was Colorado Roadless. I can’t imagine contracting something that size and complexity (spotted owl, across states) nto an outfit that is potentially starting from scratch. But maybe I’m missing something. I also hope the economists at the state universities were involved in reviewing.. it would be good to see the reviews and how the comments were responded to in a public venue.

Colt Summit Lynx Cumulative Effects: Let’s Hear Both Sides

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I think it would be interesting to investigate further exactly what the FS did right with the cumulative effects of other species, and apparently, according to Judge Molloy, did wrong with lynx.

It seems odd to me that the FS would do an adequate analysis for the other species, but not for lynx (look at past, present and reasonably foreseeable future actions). Below is a quote from Judge Molloy’s decision (italics in both below quotes are mine) :

Once an agency detemines the geographical scope of its cumulative-effects

analysis, it must analyze the incremental impact of the proposed project when

added to past, present, and reasonably foreseeable actions within the selected

geographical area. Ctr for Envtl. Law & Policy, 655 F.3d at 1007; 40 C.F.R. §

1508.7. The plaintiffs in this case insist the Forest Service’s cumulative effects

Cumulative effects on lynx analysis for lynx is inadequate. On this point they are correct. On remand the

Forest Service must prepare a supplemental EA that adequately addresses the

cumulative effects for lynx, and if necessary after that review, an EIS.

“Consideration of cumulative impacts requires some quantified or detailed

information that results in a useful analysis, even when the agency is preparing an

EA and not an BIS.” Id. “An EA’s analysis of cumulative impacts ‘must give a

sufficiently detailed catalogue of past, present, and future projects, and provide

adequate analysis about how these projects, and differences between the projects,

are thought to have impacted the environment.'” Te-Moak Tribe ofW. Shoshone of

Nev. v. U.S. Dept. ofInt., 608 F.3d 592, 603 (9th Cir. 2010) (quoting Lands

Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2004)). “An agency may,

however, characterize the cumulative effects ofpast actions in the aggregate

without enumerating every past project that has affected an area.” Ctr for Envtl.

Law & Policy, 655 F.3d at 1007.

When there is no BIS containing a cumulative effects analysis, “[T]he scope

of the required analysis in the EA is correspondingly increased.” Kern, 284 F.3d at

1077. “Without such information, neither the court nor the public … can be

assured that the [agency] provided the hard look that it is required to provide.” Te­

Moak Tribe ofW Shoshone ofNev. , 608 F.3d at 603 (citations and internal

Depending on what the cumulative effects analysis

shows, the Forest Service might be required to prepare an EIS for the Project. See

40 C.F.R. § 1508.27(b)(7).

Here, the Forest Service did not discuss or mention any past projects or

actions in its cumulative effects analysis for lynx. (See EA, A-I FS000066.) In the

EA, the Forest Service discusses how it recently acquired 640 acres ofland owned

by Plum Creek Timber Company. (fd.) It discusses the impact of snowmobile

activity in the area. (Id.) But there is no discussion of past projects or activities.

Even assuming there are no past projects or activities that would have a

cumulative effect when considered along with the Colt Summit Project, the Forest

Service must still “characterize the cumulative effects of past actions in the

aggregate.”

“neither the court nor the public … can be assured that the [agency] provided the

hard look that it is required to provide.” Te-Moak Tribe ofW. Shoshone ofNev. ,

608 F.3d at 603 (citations and internal quotation marks omitted).

etr for Envtl. Law & Policy, 655 F.3d at 1007.

I thought it would be interesting to compare the Judge’s statements to the US Attorneys’ on the point of cumulative effects on lynx, but don’t have a PACER account, nor would I know exactly what document to look for. To me, it would be illuminating to hear both sides. Can someone help locate this document, so we can hear the other side?

I could easily find the appeal response here (worth looking at to examine the kitchen-sinkery that the plaintiffs started with during the appeal).

Issue 32. The appellants allege the significance of the cumulative effects of habitat
fragmentation and reduction due to logging, road building, fire suppression, and other
management activities in regards to their effects on population levels or viability was not
disclosed.
Response: The Wildlife Report (PF, Doc. A-20, Table 5, pp. 14 to 15) indicates the project may
impact some individuals of some species, but there is no indication of project effects on
population levels or species viability of any threatened, sensitive, or management indicator
species.
Fragmentation is discussed in the Wildlife Report (PF, Doc. A-20, pp. 93 to 96). It concludes
that the proposed action would have “no impact” on fragmentation, corridors, or linkages
because the vegetation would not be altered beyond patterns that occur naturally from fire and
other disturbance, and open road density would not increase.
Cumulative effects discussions are covered in the Wildlife Report’s affected environment
sections (PF, Doc. A-20). Effects for connectivity, fragmentation, and linkages are discussed
where that issue has been raised: lynx (pp. 27 to 31); grizzly bear (pp. 35 to 45), fisher (pp. 49 to
52), wolverine (pp. 53 to 54), northern bog lemming (pp. 55 to 56), Townsend’s big-eared bat
(pp. 57 to 58), black-backed woodpecker (pp. 60 to 65), flammulated owl (pp. 67 to 70), boreal
(western) toad (pp. 70 to 72), northern goshawk (pp. 76 to 81), elk (pp. 81 to 85), and pileated
woodpecker (pp. 87 to 91).
The Biological Assessment for lynx and grizzly bear (PF, Doc. A-25) and subsequent letters of
concurrence (PF, Doc. K-14) indicate the USFWS concurred with the determinations for these
species (which include analyses on linkage and corridors). The record discusses effects of
habitat fragmentation on population levels and viability and is in compliance with NEPA,
NFMA, and ESA.

Judge Malloy’s Brief Summary of Decision on Colt Summit

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Thanks to my heroine of the day…

TEXT ORDER granting in part and denying in part [30]Plaintiff’s Motion for Summary Judgment; granting in part and denying in part [36] Defendant’s Motion for Summary Judgment. A separate Opinion will be entered in this case, however for the benefit of the parties and their planning I am denying most of the plaintiff’s claims, save one, and granting most of the defendant’s assertions, save one. The Project complies with Standards VEG S6 and ALL S1, which relate to lynx and lynx critical habitat. The project also complies with the Inland Native Fish Strategy standards governing streamside and wetland buffers. The Forest Service adequately analyzed the Project’s effects on lynx and grizzlies and did not violate Section 7(a)(2) of the Endangered Species Act. Furthermore, the Service did not improperly exclude the Summit Salvage Project Area from its analysis. The shortcoming of the Service, and the question on which the plaintiff’s prevail is in one aspect of the NEPA evaluation. The Service violated NEPA by failing to adequately analyze the Project’s cummulative effects on lynx. Consequently on this issue plaintiff’s motion for summary judgment is granted and the cummulative effects analysis on lynx is remanded to the Forest Service for further consideration and analysis. In all other respects the plaintiff’s motion for summary judgment is DENIED and defendant’s motion for summary judgement is GRANTED. A written order with my reasoning will follow. Signed by Judge Donald W. Molloy on 6/20/2012. (Molloy, Donald)

All sides claim victory in logging lawsuit ruling: AP story on Colt Summit

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Above are the details of the disputed project.

Thanks, JZ for this AP story in the Helena IR.

Link here.
Excerpt below.

Lolo National Forest Supervisor Debbie Austin said the one-paragraph order does not address the status of the project, so both sides must wait for the full order to determine the effect of Molloy’s ruling. But Austin declared it a win for the project, saying the judge ruled with the Forest Service on most of the claims brought against it.

“We won on 11 of the 12 counts, and most importantly, we did show that we provided adequate analysis and are providing adequate protections for lynx, grizzly bears and bull trout,” Austin said. “We’re just waiting for the full opinion and we’re looking forward to strengthening the cumulative effects analysis and moving forward.”

The Wilderness Society also called the ruling a victory for the project because Molloy upheld “their most significant argument,” that the project would not harm lynx, grizzly bears and bull trout.

Assessing the long-term cumulative effects on lynx habitat won’t present a major obstacle because the judge has already agreed the project won’t harm lynx, the organization said.

Garrity said that when the Colt Summit Project is put into the context of other logging projects on private land and in the neighboring Flathead National Forest, there is a real threat to lynx habitat.

“I don’t think that’s something they can paper over,” Garrity said. “It’s a real issue.”

Austin said contracts for part of the project that are not being contested, such as roadwork and culvert repairs, already have been awarded and work could begin as early as July 1. A contract for the logging portion of the project has not yet been awarded, and advertising the timber sale has been pushed back to later in the summer because of other priorities, she said.

But the important thing, Austin said, is that the judge’s ruling is a good sign of the strength of the collaborative process and the Forest Service will be working to develop more projects using that method.

“The design and development is much better and I think that is shown in the judge’s decision,” she said.

Note from Sharon: It should be interesting to see what kind of cumulative effects analysis is “enough.” Apparently, the bull trout and grizzly bear cumulative effects were “enough,” so we’ll be able to tell what Judge Molloy thought was missing. PS If anyone has a copy of the order please send to [email protected].

Judge Molloy on Colt Summit- E&E News

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Here’s a link.

Here’s an excerpt:

In a brief order that will be followed by a lengthier written opinion, Molloy granted the Forest Service’s motion for summary judgment on several points. Among other things, he concluded that the Forest Service had adequately reviewed the potential direct impact of the proposal on lynx and grizzly bears.

But he ruled that the analysis of the project’s cumulative impact on lynx as required by the National Environmental Policy Act was not sufficient.

The Forest Service will now have to conduct that analysis before the plan can go ahead.

Megan Birzell of the Wilderness Society, a supporter of the plan, said Molloy’s finding was not a major setback because of the judge’s concurrent finding that the project passed muster under the Endangered Species Act.

“The judge said it won’t have an impact on lynx, but the Forest Service needs to beef up their analysis to better document that,” she said.

It will be interesting to see exactly what the documentation didn’t have that the judge was looking for.