Planning

Old Growth Amendment – When can you cut down large/old trees?

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There are some other recent threads here that have been discussing this question, and I thought it might be helpful to post the actual language from the draft of the amendment (Table 1) that would answer this question.  It establishes criteria at the plan level that must be met by projects proposed in forests identified as old growth, as well as a guideline for removing “old trees” in other areas.   I have to say my overall impression is that there are enough exceptions that it is hard to believe the Forest Service couldn’t find one that would allow removal of large/old trees in any project it proposes.  On the other hand, this does put the burden on the Forest Service to demonstrate in the project record that the project would meet the exception, e.g. that it would in fact “reduce hazardous fuels.”  (But any wood is a “fuel,” so what makes it “hazardous?”)

I think Standard 3 is interesting.  If projects in old growth forests can not be for commercial timber production, I assume that these forests must then be classified as unsuitable for timber production?

An interesting omission:  “resilience to climate change,” which is what the 2012 Planning Rule is all about.

I’ve added a few italics to help frame the structure (and I see that the copying messed up the numbering of the criteria ….).

(The comment period closes around September 21.)

 

Standard 2.a

Where conditions meet the definitions and associated criteria

of old-growth forest, vegetation management may only be for

the purpose of proactive stewardship. For the purposes of this

standard, the term “vegetation management” includes – but is

not limited to – prescribed fire, timber harvest, and other

mechanical/non-mechanical treatments used to achieve

specific silviculture or other management objectives (e.g.

hazardous fuel reduction, wildlife habitat improvement). For

the purposes of this standard, the term “proactive stewardship”

refers to vegetation management that promotes the quality,

composition, structure, pattern, or ecological processes

necessary for old-growth forests to be resilient and adaptable

to stressors and likely future environments. Proactive

stewardship in old-growth forests shall promote one or more of

the following:

  1. reduction of hazardous fuels to reduce the risk of loss

of old-growth forests to uncharacteristic wildfire, and to

facilitate the return of appropriate fire disturbance

regimes and conditions;

  1. resilience to insect and disease outbreaks that would

result in the loss of old-growth conditions;

1. ecological conditions for at-risk species associated

with old-growth forest, including conditions needed for

the recovery of threatened and endangered species;

  1. amount, density, distribution and species composition

of old trees, downed logs, and standing snags

appropriate for the forest ecosystem type;

  1. vertical and horizontal distribution of old-growth

structures, including canopy structure and composition;

  1. patch size characteristics, percentage or proportion of

forest interior, and connectivity;

1. types, frequencies, severities, patch sizes, extent, and

spatial patterns of disturbances;

1. successional pathways and stand development;

  1. connectivity and the ability of old-growth obligate

species to move through the area and cross into

adjacent areas;

  1. culturally significant species or values, to include key

understory species;

  1. species diversity, and presence and abundance of rare

or unique habitat features associated with old-growth

forests; or

1. other key characteristics of ecological integrity

associated with old-growth forests.

 

Standard 2.b

 The cutting or removal of trees in old-growth forest for

purposes other than proactive stewardship is permitted when

(1) incidental to the implementation of a management activity

not otherwise prohibited by the plan, and (2) the area – as

defined at an ecologically appropriate scale – continues to

meet the definition and associated criteria for old-growth forest

after the incidental tree cutting or removal.

 

Standard 2.c

 Deviation from Standard 2.a and 2.b may only be allowed if

the responsible official determines that vegetation

management actions or incidental tree-cutting or removal are

necessary for the following reasons and includes the rationale

in a decision document or supporting documentation:

  1. In cases where this standard would preclude

achievement of wildfire risk management objectives

within municipal watersheds or the wildland-urban

interface (WUI) as defined in Section 101 of the

Healthy Forest Restoration Act of 2003 (16 USC

6511) and its application by the local planning unit, or

would prevent protection of critical infrastructure from

wildfire;

  1. to protect public health and safety;

1. to comply with other statutes or regulations, valid

existing rights for mineral and energy resources, or

authorizations of occupancy and use made prior to

the old-growth amendment decision;

  1. for culturally significant uses as informed by tribes or

for de minimis use for local community purposes;

  1. in areas designated for research purposes, such as

experimental forests or research natural areas; or

  1. in cases where it is determined – based on best

available science, which includes Indigenous

Knowledge – that the direction in this standard is not

relevant or beneficial to a particular species or forest

ecosystem type.

 

Standard 3

Proactive stewardship in old-growth forests shall not be for the

purpose of timber production as defined in 36 CFR 219.19.

 

Guideline 3

 

To preserve the cultural and historical value of old trees

occurring outside of old-growth forests, vegetation

management projects should retain and promote the

conservation and survivability of old trees that are rare when

compared to nearby forested conditions that are of a

noticeable younger age class or unique in their ability to

persist in the current or future environment, and are not

detracting from desired species composition or ecological

processes.

Recent planning news – August 1, 2024

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Since the courts were kind of quiet during July, here’s some things that have been going on with forest/BLM plans recently.  The last time I did this, I was able to assemble what I thought was a fairly complete summary of the status of national forest planning.  It’s now been long enough since the Forest Service has provided this information that I’m not confident that I’ve picked up information about every unit that is revising its plan (it now looks like this would require a visit to each national forest’s website).  But here’s some stories I’ve seen lately (hopefully in order of those closest to being done first).

Nez Perce-Clearwater National Forest revision

May 11:  The Nez Perce-Clearwater  wrapped up a three-day virtual meeting with parties who filed objections or comments on the proposed final land management plan.

Gila National Forest revision

July 30:  The Forest Service initiated the 60-day objection period for the final EIS and draft record of decision for the Gila National Forest revised land management plan, as well as the Southwestern Regional Forester’s Species of Conservation Concern list for the Gila.

Manti-LaSal National Forest revision

June 5:   The Acting Forest Planner for Manti-La-Sal  discussed the completed draft for the revised forest plan with the Emery County Public Lands Committee .  The DEIS comment period is now closed.

Black Hills National Forest revision

June 12:  After completing its assessment in December, the Black Hills has pushed back publication of the notice of intent to begin developing the plan to fall or early winter, according to a consultant for the county commissioners.

Blue Mountains national forests revisions

April:  The Malheur, Umatilla, and Wallowa-Whitman National Forests hosted a series of public meetings  for the public to submit feedback about the Forest Plan Revision Draft Assessment documents.

Tongas National Forest revision

July 24:  The Tongass has released a draft inventory for potential wilderness recommendations as part of its assessment process for the revised plan, with comments due September 14.

Bridger-Teton National Forest revision

May 30:  The Bridger-Teton National Forest has published a notice of its intent to prepare an assessment and initiate the land management plan revision process in the Federal Register. There is no formal comment period at this time.

Superior National Forest Boundary Waters Canoe Area Wilderness plan amendment

May 17:  The comment period for scoping  to “update and modernize” the 30-year old forest plan direction for the BWCAW has ended.

BLM Gunnison sage-grouse amendment

July 3:  The BLM has released a Proposed Resource Management Plan Amendment and Final Environmental Impact Statement that applies to the management of habitat for eight Gunnison sage-grouse populations on BLM-managed public lands across southwest Colorado and southeast Utah following its listing as a threatened species under the ESA in 2104.  Protests must be received by August 5.

BLM greater sage-grouse amendments

June 13:  The Draft Resource Management Plan Amendments (RMPA) and Environmental Impact Statement (EIS) for Greater Sage-Grouse Rangewide Planning were made available for public review, and the 90-day public comment period has ended. 

 

 

 

 

 

Featured lawsuit – Flathead National Forest plan revision (and the effect of no Chevron judicial deference)

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Court decision in Swan View Coalition v. Haaland (D. Montana)

On June 28, the district judge adopted the magistrate judge’s findings that the Forest Service violated the Endangered Species Act because it failed to adequately consider the effects on grizzly bears and bull trout of closed roads and unauthorized use of roads when it adopted its revised forest plan (discussed in depth here).  This article has a link to the court order, which remands the Fish and Wildlife Service’s Biological Opinion, but does not disturb the forest plan, or enjoin any projects.

This is the second time the Forest Service has lost this case, and I thought it might be interesting to explore this example of the role the courts have in considering scientific issues related to land management, and whether such judicial review looks different with Chevron deference to agency expertise no longer the law.  The scientific question in this case concerns the effects of “closed” roads on grizzly bears and bull trout – more specifically the difference between the effects of roads closed by obliteration and restoration (as required by the prior forest plan) and roads closed by signs and barriers, without removing culverts (as required by the revised forest plan, and referred to as “impassable” roads).  There are documented violations of the latter kinds of closures, and the agencies agree that they are less than 100% effective.  However, the Fish and Wildlife Service declined to consider the effects of these closed roads or their use on the listed species in its biological opinion.

This court found held that the FWS violated the ESA because the agency “offered an explanation for its decision to exclude impassable roads from (total road density) that runs counter to the evidence before the agency.”  With regard to grizzly bears, the agency “failed to address the exclusion of unauthorized motorized use from road density calculations and, to the extent the agency did address this issue, failed to articulate a satisfactory explanation regarding its decision.” Regarding bull trout, the court ruled that FWS violated the ESA because the agency “failed to address its decision to abandon the culvert removal requirement with respect to impassable roads.”

This court largely followed the reasoning in a prior case regarding deference to the agencies (referring to that prior opinion):  “The Court explained that, while it would defer to the agencies’ expertise on how to account for unauthorized motorized access going forward, ‘the agencies must actually exercise that expertise for their decision to stand.’ Id. at 1138. In summary, ‘[c]laiming a total inability to ascertain, or even estimate, effects of unauthorized motorized use on OMRD, TMRD, and Core—and, by extension, the effects on grizzly bears—despite the evidence in the record . . . does not suffice.’”

Courts can tell from the administrative record whether an agency actually considered the scientific facts in the record, and the agency will be found arbitrary if it did not.  This is an application of the requirements of the Administrative Procedure Act, not an interpretation of a subject matter statute.  Such cases wouldn’t have invoked Chevron deference in the past, and so nothing should change.

We might perceive a little wiggle room in the question of a “satisfactory” explanation of how the facts were considered.  The court walks through this question on pp. 29-33, where it refers to “logic” and whether the facts in the record support the statements made by the agencies.  It concludes that the explanation in this case “runs counter to the evidence before the agency.”  This still looks like an APA record review rather than one involving interpretations of law or fact that could have raised questions about Chevron deference.  I don’t see evidence that the judge is usurping agency expertise.

New Flathead National Forest Supervisor interview

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Anthony Botello took the job as forest supervisor on the Flathead at the beginning of the year, and provided this extended interview to the Missoulian.  This may be paywalled, but I’ve pulled out a few quotes related to things I tend to talk about.

Staffing of NEPA specialists is especially hard:

We have staffing challenges all across our workforce, but the one that pops to mind right now — because much of what we do revolves around very smart people who lead our ID (interdisciplinary) teams through our NEPA (National Environmental Policy Act) process, and those are folks that are in high demand and we have very limited numbers of them that are interested in our jobs.

For example, we have three interdisciplinary teams on this forest that do the work all across the forest, and we plan projects that then we go and implement. It could be timber, it could be fuels reduction, recreation. And we need team leaders — we call them environmental coordinators or team leaders — to lead those teams to get us through that legal NEPA process. And we’re struggling, not just this forest but the forest I came from was struggling.

Condition-based NEPA:

Some projects have a very focused purpose and need, they’re very focused in what we’re wanting to do, and so we have more of the traditional, our specialists go out there and monitor and look at conditions and then use that for our analysis to determine.

And then we have some places where we want to look at bigger landscapes, we want to look at more adaptive management, so we pull into this idea of, let’s make conceptual decisions and then when we go to implement we’ll do more of the site-specific look at things.

A new forest plan is a good thing:

We’ve got really good strong language in our forest plan. The forest plan that we have here is a relatively new plan. In my career I’ve worked on forests with 20-, 30-year-old forest plans. The Payette had a relatively new plan when I was there, the Wallowa-Whitman had a pretty old plan.

And this one, thankfully, has been redone as of ’18. In that, we worked very closely with some of our U.S. Fish and Wildlife Service, Montana Fish, Wildlife & Parks partners to come up with the standards that are in there.

And our forest plan — through public involvement, through NEPA, through line officer decision — withstood all of those thresholds, which was good. And we’re implementing the forest plan. The forest plan does have some pretty good, strong, prescriptive language about all those things — about roads, about (recreation) sites, about grizzly habitat — it’s a very contemporary plan when it comes to that.

Litigation and policy decisions:

The role of a line officer is not to interpret any kind of court ruling, decision, etc. We wait for our agency to promulgate a rule or a regulation.

(Follow-up question)

Just to make sure I understand: In a situation where the forest plan or a project loses in court in a certain issue, any sort of reaction to that is not going to come from you as the forest supervisor, it’s going to come from higher-up in the agency with either a new rule or amendment to a plan? And then when that comes down, you simply keep following the plan or the rule? 

Kind of, yeah. Litigation, obviously, can affect the way we manage. But there’s a whole bunch of steps between that and changing our forest plan. We have a legal staff that advises us on that, and until that happens we’re managing the way our forest plan has guided us to manage.

There’s a whole bunch of steps that would happen between some theoretical court case and us changing our management, and we’ll do that when it goes through the process that it needs to go through before it changes something that we’ve already adopted.

Northwest Forest Plan Amendment- FACA Committee Discussion Draft Plan of Components

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Susan Jane Brown was kind enough to provide links to the draft plan components and draft recommendations. She pointed out, importantly (!) that “THESE ARE DRAFT AND UNDER ACTIVE DISCUSSION AND NEGOTIATION. The USFS hasn’t made any decisions yet, nor has the FAC reached consensus.” Here’s a link to their meeting archive page, and here’s one to the recommendations.

As with many things in forest planning there are many words here,  the Tribal recommendations are too long to post, 15 pages and change.

So I hope readers will take a look and give us your thoughts on any section. Maybe our thoughts will help inform the FACA committee and the Forest Service? I’d like it if they would not use “resiliency” and always use “resilience” but that’s just me.

Here are plan components for those not familiar with the planning process:

Here are the different sections for you to look at.

Here’s a section some might be interested in (I picked it because it is relatively short):

Decision Making Under Deep Uncertainty: Should the Forest Service and BLM Try This?

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I’m not following the Northwest Forest Plan update.. fortunately many members of the TSW community are tracking it and hopefully will provide us with updates. But when I read this paper (open access), it made so much sense to me that I thought it was worth sharing. It’s about how the Bureau of Reclamation, one of the Forest Service’s many cousin DOI agencies, deals with the complex world of uncertain futures, climate change being one of many. Not only that, but even if we could project future microclimates accurately (which we can’t), we don’t know how climate changes will cause different interactions with hydrology, temperature, plants, animals, the rhizosphere, insects, diseases, etc. So there are different ways of planning based on acknowledging uncertainties. And yet at some point, the modeling and scenario-building with acknowledged uncertainties could get so complex that no single person could possible understand it. And how can the public effectively be involved in that case?

The Forest Service is legally required via NFMA to do long-range planning (although the RPA Program seems to have fallen by the wayside). The question is “what is the variety with which agencies approach the use of climate as well as other uncertainties in decision-making?” Are they consistent (even within a department)? Should they be? Are some approaches better than others? Based on what criteria?

I kind of like this approach; at least it might be worth a try in a pilot. Or perhaps the Northwest Forest Plan revision?

Decision Making under Deep Uncertainty
A focus on vulnerability, robustness, and adaptation necessitates an expansion of analytical methods beyond those traditionally used in long-term water resources planning. Decision Making under Deep Uncertainty (DMDU) is a subfield of decision science that focuses on developing and applying the frameworks, tools and techniques necessary to produce actionable information while appropriately accounting for deep uncertainty (Marchau et al. 2019). Models have long been used to answer “what-if” questions (Bankes et al. 2013) and have been widely adopted in many planning contexts, including in the Colorado River Basin. DMDU builds on this model-informed decision making by helping planners strategically design the “what ifs” and offering new quantitative tools to drive models and analyze output. Since the early 2000s, a dedicated and rapidly growing community of researchers and practitioners forming the Society for DMDU (http://www.deepuncertainty.org) has been applying and refining DMDU methods in a wide range of domains including national security (Dixon et al. 2008), energy planning (Toman et al. 2008), and water resources management (Lempert and Groves 2010; Means et al. 2010; Basdekas 2014; Raucher and Raucher 2015; Groves et al. 2019).

DMDU techniques share a common underlying philosophy of designing iterative planning processes and analyses to identify actions that reduce a system’s vulnerability to uncertain future conditions. Robust Decision Making (RDM) (Lempert 2002) is described here as an example because Reclamation has used components of it in the past and is continuing to explore and develop related methods.

RDM is designed to facilitate a “deliberation with analysis” process through which parties can systematically integrate a large amount of information and wide-ranging positions about possible future conditions, important performance objectives, and appropriate actions to address challenges. The ultimate goals of RDM are to develop shared understanding of a system and identify a broadly acceptable plan or policy that is robust to a range of futures. The steps of RDM are depicted in Figure 3 and summarized below. Note that although the steps are numbered here and described in order, in practice the relationships between the components of RDM are flexible.

In Step 1, stakeholders define key components of the analysis: performance objectives and criteria; the sets of possible actions, or strategies, that could be undertaken in pursuit of the objectives; ranges of values for uncertain future conditions; and a model that simulates relationships between objectives, actions, and uncertainties. In Step 2, a proposed strategy is tested in a wide range of future conditions to generate a thorough representation of performance variability. In Step 3, the performance information is analyzed with statistical data mining techniques that seek to “discover” decision-relevant scenarios, or those combinations of uncertain conditions that cause the strategy to perform poorly. (This is a departure from traditional analysis in that the scenarios themselves are not dictated in advance of the procedure.) In Step 4, tradeoffs with respect to robustness, vulnerabilities, and costs among different strategies are analyzed, and a single strategy may be agreed upon. If insights from Step 3 or Step 4 warrant it, Step 5 may be necessary to reframe the decision and develop new strategies, at which point the RDM process repeats.

Rio Grande National Forest Plan Revision Litigation

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I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).  Two lawsuits were filed against the Rio Grande in November 2021.  One of them (Defenders of Wildlife v. U. S. Forest Service) was decided a year ago by the district court and is on appeal to the 10th Circuit.  That case is worth some discussion, so here it is.  There has not yet been a district court hearing for the other case (San Luis Valley Ecosystem Council v. Dallas).  (The Colville revised plan litigation involved the previous 1982 planning regulations.)

On January 27, 2023, the district court upheld the Rio Grande revised forest plan’s compliance with the Endangered Species Act and NEPA for Canada lynx.  The judge framed the issue in this case as whether the Forest failed to “protect the lynx by inadequately limiting logging in the Forest under a revised forest plan in violation of the ESA, the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).”  The court found no violation of ESA in the Biological Opinion by the Fish and Wildlife Service, and it summarily dispensed with the NEPA and ESA claims against the Forest Service as being based on “substantially the same arguments.”

The case involves changing forest plan management direction for Canada lynx from that included in the Southern Rockies Lynx Amendment in response to insect-killed trees and blowdown over a large portion of the Forest.  The opinion asserts at the outset that, “Petitioner’s position is fundamentally flawed for at least three reasons.”  Two of these are troubling.

The court minimizes (or perhaps rejects) the need for ESA consultation on national forest plans because they are “programmatic,” and (citing the BiOp), “no immediate consequences occur directly to Canada lynx caused by the proposed action,” and therefore “implementation cannot be said to jeopardize the lynx directly.”  If plan cannot jeopardize a species, then there should be no need to consult.

These statements and this conclusion would be contrary to national Fish and Wildlife Service policy on consultation on “programmatic” or “tiered” decisions.  Forest plans are decisions that both promote activities that could adversely affect species through desired conditions and objectives, and limit those activities through standards and guidelines.  Consultation on such decisions is based on the effects that would be allowed to occur using the “design standards” in the decision.  There is no requirement that consequences potentially leading to jeopardy be “immediate.”

The court’s conclusion is also at odds with other cases, which emphasized the broad scope of agency “actions” subject to ESA.  The 10th Circuit has determined that, “Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA.”  Forest Guardians v. Forsgren, 478 F.3d 1149, 1154 (2007).  The 9th Circuit held, “RMPs are actions that “may affect” the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.”  Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (1994).  A requirement to consult on forest plans must presume that there could be some basis for finding substantive violations of ESA, so this court’s finding of a fundamental flaw here seems fundamentally flawed.

A second “fundamental flaw” results from the fact that, “lynx habitat in the Forest amounts to just over 2 percent of the lynx habitat in the contiguous United States,” and “none of that habitat was designated as critical.”  Therefore, “even if the lynx were extirpated in the Forest, that would not significantly affect the status of the lynx across the contiguous United States.”  This raises questions about the effectiveness of applying ESA’s requirements to wide-ranging species if no individual project or even a forest-wide plan could be viewed as capable of causing jeopardy.  This is a reason why the western lynx amendments were applied across ranges of the lynx, and consultation occurred on multiple national forests simultaneously.  The reasoning the court applied here highlights the risk of now disassembling a regional strategy on a forest-by-forest basis.  Doing so on one forest should arguably trigger the need to reinitiate consultation across the range of lynx (in this case the southern Rockies national forests).

This court’s view of ESA highlights the need to challenge species conservation provisions of forest plans under the viability requirement of the 2012 Planning Rule, even for listed species.  The requirements pertaining to species viability must be met based on their probability of persistence in the “plan area.”  Various statements cited by the court would support a conclusion that lynx are not likely to persist on the Rio Grande National Forest plan area over time.  This argues for strict scrutiny of forest plan components that would allow any adverse effects to occur from management activities.  Similar to ESA, the viability requirement contemplates long-term consequences of multiple activities over time, and effects need not be direct or immediate.  (In another context, the court points out that, “the revised forest plan is intended to remain in effect only until about 2036,” but it may be that management actions during the life of this plan would contribute to the “long-term” decline, which is the test applied by the 2012 Planning Rule).

There is a counter-argument that the 2012 Planning Rule applied the viability requirement explicitly only to “species of conservation concern,” which are defined to not include listed species, for which the requirement is to “contribute to recovery.”  However, at the point at which the species recovers, it should immediately become an SCC (see Planning Handbook §12.52d.2.b) and would need to meet the viability requirement.  Regardless, logic requires that what is needed to “contribute to recovery” should be something beyond what is needed to maintain viability after recovery, and that plan components for listed species must at least provide habitat for viable populations.

This outcome would be consistent with court interpretations of the NFMA diversity requirement under the 1982 planning regulations.  When the Forest Service argued that it did not have to meet the viability requirement for listed species, the 9th Circuit found, “The effect of the Forest Service’s position in this litigation, were it to be adopted, would be to reward the Forest Service for its own failures; the net result would be that the less successful the Forest Service is in maintaining viable populations of species as required under its regulations, the less planning it must do for the diversity of wildlife sought by the statute. This is directly contrary to the legislative purpose of the National Forest Management Act.”  Seattle Audubon Society v. Evans, 952 F.2d 297, 301 (1991).  (The San Luis Valley Ecosystem Counsel claims against the Rio Grande plan include NFMA violations for lynx and the Uncompahgre fritillary butterfly, but relative to the “contribute to recovery” requirement for listed species, and not the viability requirement.)

The third “overarching flaw” appears to derive from judicial deference principles.  The court specifically notes that, “the Court does not find that the presumption of validity that attaches to agency action is overcome merely because the revised forest plan changes the way the SRLA was previously applied in the Forest.”

The remainder of the opinion discusses the scientific rationale provided by the agencies for their effects analysis and decisions, and finds that they properly address questions raised by plaintiffs, and the court was “not persuaded that implementation of the revised forest plan is likely to make conditions worse for the lynx.”  (Perhaps under stricter scrutiny called for by the NFMA plan area viability requirement the court might have been persuaded.)  So maybe the court’s findings of “fundamental flaws” were just window dressing?

On January 17, 2024 the 10th Circuit held a hearing (listen here) in this case.  I have not read the briefs, but the hearing did not discuss the overarching issues reviewed above, so it appears that they are assuming (and apparently the government did not object) that the Rio Grande revised plan could theoretically cause jeopardy to lynx.

The hearing was narrowly focused on two issues, and particularly on the question of whether the northern portion of the Rio Grande should be managed as an area of low lynx use with less protection, as it is in the revised forest plan.  That turned on the question of best available science.  The only research on lynx that included the northern portion (Ivans) concluded that there could be high lynx use.  The Fish and Wildlife Service concluded otherwise based on discussions with unnamed biologists that were not specifically documented.  Importantly, there is no record of the reasons why the Ivans study was not accepted by the FWS (or the Forest Service).  If there were no conflicting information in the record, the unattributed sources might be sufficient, but that is not the case here.  The FWS conclusions could be considered arbitrary.

The second issue was about the importance of the lynx population on the Rio Grande, and/or the importance of the Colorado lynx population to the listed species.  The record indicated that the Rio Grande lynx are important to the Colorado population.  The FWS had also said elsewhere that all six populations in the lower 48 (the listed entity) are important, but then discounted the current importance of the Colorado lynx population because it was not historically important.  Ultimately the question appeared to be whether the FWS properly considered the importance of these lynx in its jeopardy determination for the species.

We await a decision.

 

 

 

Lawsuit Over 15 Acres on the Pisgah-Nantahala: New Forest Plans and Previously Approved Projects?

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Mature trees on Brushy Mountain in Nantahala National Forest in August. Photo: Jack Igelman / Carolina Public Press

I’d like to point out to any FS leadership who read TSW that folks on the Forest wouldn’t talk to me to tell their side of the story.  So they are being good employees.  Problem is, if it weren’t for retirees who happen to keep up with the details (retirees like this being rare and threatened by loss of interest), we would never hear the FS side- unless there is an objection response on the same points. Maybe this would be a good application for AI.. “find the FS statements about … in the EA, response to comments and objections.” Still, I don’t think the Cone of Litigation Silence is good for public understanding, trust and support.

Anyway, here’s a link to Jack Igelman’s recent article on the issue. You can follow him on TwitX @ashevillejack.  I’m not a legal person, as everyone knows, so there are some quotes from me that are off the top of my head about why these 15 acres are of concern.  Conceivably with the same funding invested, the plaintiffs could buy their own 15 acres and manage it however they wanted.  Maybe our friends at SELC will weigh in.  Kudos to Jack for reading the EA!

The agency is obligated to manage the forest along the Whitewater River as a wild and scenic river corridor, which limits management options. However, timber harvesting is allowed to occur as long as it does not harm the river’s outstandingly remarkable values or degrade its water quality. The wild and scenic corridor extends about one quarter-mile on each side of the river.

“This timber prescription takes it backwards,” said Nicole Hayler, executive director of the Chattooga Conservancy. “The Forest Service has a track record of management activities in eligible areas to basically whittle away at the eligibility.”

Will harvesting “harm the values” or “whittle away at eligibility”?  I don’t think we can judge without the prescription. (NHP is the natural heritage program.)

In the Southside Project’s final Environmental Analysis released in 2019, the Forest Service included a response to objections that the project analysis failed to analyze impacts to state natural areas.

The NHP determined that portions of the stand are dominated by white pine, an artifact of previous land use that is not naturally occurring.

According to the NHP, “It would be beneficial to remove the white pines from this stand, and then manage the area after harvest in such a way to restore the natural community” while acknowledging that some areas along the Whitewater River are in excellent condition.

The NHP did not respond to CPP’s interview request.

But if it’s good to remove the white pines, then maybe taking some more trees and getting openings for the “natural community” is a good idea.  Again, it would be nice to see the prescription.

The timber harvest prescriptions for the tract “require harvesting much more than white pine,” SELC attorney Patrick Hunter said. “We can say with certainty that the NHP’s request to limit logging to white pine is not reflected in the Forest Service’s final decision.”

But did the NHP say to limit the logging to WP? What other species are there? Is taking out the WP and other species an opportunity to increase tree species diversity or wildlife habitat?

Although the lawsuit includes a relatively small parcel of land, Friedman said that the court’s ruling could establish legal precedent around the influence of new forest plans on projects initiated and authorized under prior plans.

“The same groups who didn’t want certain projects before will still not want them” after a forest plan is finalized, she said. “If they feel strongly enough about them and have the financial wherewithal, they will litigate those projects. That’s just the way it works for most of the country; it’s business as usual. “

Litigating forest restoration projects in the Forest Service’s Southern region, however, are less frequent compared to other parts of the country, such as the Northern or Pacific Southwest region. There has been just one forest restoration project litigated in the Southern region which stretches from Texas to Virginia since 2003.

Hunter told CPP this is the first time SELC has initiated litigation against the Nantahala or Pisgah National Forest.

Whether the case is settled inside or outside of court, Friedman said changing an existing agency decision may set a precedent for other projects and other national forests.

According to Hunter of the SELC, the lawsuit seeks to validate the understanding that activities occurring within the national forest must be consistent with the current forest plan.

He noted that the complaint could reinforce existing precedent citing a 2006 decision against the Cherokee National Forest in Tennessee in which the court ruled that a timber harvesting and road building project must be made consistent with a revised forest management plan that went into effect after the projects’ authorization.

The legal action reflects broader concerns about balancing the need for timber harvesting to restore the ecology of the forest while preserving ecologically significant areas and underscores the complexities of managing public lands.

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Of course, the Cherokee NF is indeed in Region 8, so I guess the difference is whether the project is a “restoration” project or a “logging” project.  I would only offer that what the FS sees as a restoration project (with tree removal), other entities often see as a “logging” project.  This is a real side trip-  but I ran across a paper by Miner et al. from 10 years ago (no paywall) that had this graph. The authors characterized these as “land management” cases, not necessarily vegetation management cases.

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David Whitmire, of the Fish and Wildlife Conservation Council, which represents the interests of fishers and hunters in Western North Carolina, said the lawsuit could, however, slow down forest-restoration work.

“I would rather see money spent on projects rather than lawyers,” Whitmire said. “The Forest Service is having to back up and deal with the lawsuit. It takes away a lot of resources that would otherwise benefit the forest.”

I’d only add that if this case sets precedent for forest plans being retroactive for ongoing previously approved projects, I think it might have two effects: first that Forests will not want to do plan revisions. When I worked in Region 2, many forests were not enthused about plan revisions anyway (reopening large numbers of disagreements to what end?).   Second is that if they are in revision, they would seemingly be less inclined to give areas with ongoing projects more restrictive designations.  It seems that both of these co-evolutionary responses by the FS would be against what plaintiffs would ultimately prefer.

But perhaps the plaintiffs will weigh in.

New available science for wildlife connectivity

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National Parks Conservation Association

Federal lands are separated by highways all over the west.  Those highways are a barrier to many species of wildlife, including species listed under the Endangered Species Act and those identified as Species of Conservation Concern (SCC) in national forest planning. Climate change is recognized as increasing the importance of wildlife movements.

Forest Service planning regulations pertaining to designation of SCC require consideration of all threats to the species’ persistence in the plan area, whether or not the threats occur within the plan area or are the result of national forest management.  Often, significant threats to these at-risk species come from outside of the federal lands; one of these is the effect of highways on connectivity.   The Forest Service could improve prospects for some species to persist in the plan area by making it easier for them to get to and from it.  They can do two things to promote that.  They can 1) collaborate with other agencies managing land, wildlife and transportation to identify the most important areas to jointly manage for connectivity, and 2) manage their lands in or near these areas to minimize barriers to wildlife movement, first by recognizing them as such in forest plans.

There’s a new tool from the Center for Landscape Conservation that could help with identifying the important areas consistently across the west.  As with any newly available science, the agencies involved should be looking at this mapping tool and determining whether and how they will use it, and ideally documenting the rationale, especially for disregarding this new information.  National forests should be checking their forest plans to see whether their assigned management areas would make these connectivity areas less attractive to wildlife movement, and amending plans as needed.

The study that produced these maps also found that “1,523 of the CC (“collision and connectivity”) segments (338 mi) have enough collisions to make it more cost-effective to build a wildlife crossing than to do nothing,” and land management agencies should support such efforts and manage their lands to facilitate their use by wildlife.

More on the Nez Perce-Clearwater-Lolo revision (and the Great Burn)

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Here’s a little more (added to this) on the Nez Perce-Clearwater revised forest plan.  Mostly I wanted to share this graphic of how they are “reaching out” to the public.  They ask an important question:  “What can you do?”  The obvious meaning seems to be what can you do about the forest plan, and the answer for most people is “nothing.”  They say that the plan is in the objection period, but don’t tell us that the only people who can participate are those who have already done so.  They invite us to “learn more,” about this nearly-done deal, which they misleading label as a “draft Forest Management Plan.”  (At the draft EIS stage, the Planning Rule refers to it as the “proposed plan,” and at the objection stage it is just the “plan.)   While they have must have included similar outreach at earlier stages in the process, for those encountering this for the first time, it’s almost disingenuous.

But while I’m at it , there was also another article recently that focused on the State Line Trail, which runs through the Hoodoo Recommended Wilderness Area in the Great Burn between Idaho and Montana.  (I’ve been there but haven’t been directly involved in the planning, so know only what I read.)

“It used to be a marquee backcountry ride for mountain bikers, too. That ended in 2012 when the Nez Perce-Clearwater National Forest, which controls the Idaho side of the trail, approved a new travel management plan that barred bicycles from its portion of the trail. On the Montana side, the Lolo National Forest has long allowed bicycles on the trail.”

A new revised forest plan for the Nez Perce-Clearwater could change that, by determining that bicycles are an appropriate use in the portions of Idaho around the trail, which would mirror access on the Montana side. If the changes in the plan are finalized, possibly later this year, that would set the stage for the Nez Perce-Clearwater to revisit and alter its 2012 travel plan to formally re-allow bicycles on the trail.”

The rationale behind these changes, according to the forest supervisor, don’t seem to include consistency (more on that later):  “We have these types of very primitive, amazing, out in the middle of nowhere experiences that you can get to no matter what your matter of conveyance is.”  No apparent agency recognition that the conveyance is part of the experience for those who encounter it, and for some it makes it feel unpleasantly more like “somewhere.”

One of the supporters added, “It’s a small segment of the sport that this is going to appeal to,” he said. “It’s not that close to Missoula. It’s hard. The trail’s in deteriorating condition. But this opportunity is, for certain people, something they really, really want.” That small segment of certain people (who apparently want to deteriorate the trail even more) must be pretty special to get this kind of personalized attention.

“Some mountain bikers are drawn to remote, rugged, and challenging backcountry trail experiences on wild and raw landscapes,” a group of supporters commented. “These are places where it is uncommon to see other trail users, and where riding requires a high level of physical fitness and technical skill — in many cases it involves pushing a bike instead of riding at all.”  That would be like hiking, wouldn’t it?  So, it’s not like closing the area to this use would exclude these physically fit people from these wild and raw landscapes.  I’ll admit that I don’t understand the rationale of wanting to experience a “wild and raw landscape” on a machine, which (to me) reduces the rawness and wildness of the experience.

The aura of personal opinion and politics behind these wilderness debates is why I focus my energy on other things.  Here there is also talk about snowmobiles and mountain goats, and why mountain goats are treated differently in adjacent national forests.

As for the effects of snowmobiles on mountain goats, the Idaho Department of Fish and Game blamed them for disappearance from one part of this area, but the founder of the Backcountry Sled Patriots says otherwise (citing other research).  The Lolo National Forest cited the negative effect of motorized over-snow machines as reason for designating them a species of conservation concern.  The Nez Perce-Clearwater is not concerned about mountain goats.  The Forest Service minimizes the importance of the areas at issue to mountain goats (though they apparently used to be some places they are not found now).

About the Lolo, Marten, the regional forester, who determines which species are SCC, wrote:

“Compared to other ungulates, the species appears particularly sensitive to human disturbance. Motorized and non-motorized recreation, as well as aerial vehicles, are well documented to affect the species, particularly during winter and kid-rearing season, with impacts ranging from permanent or seasonal (displacement), to changes in behavior and productivity.”

The regional director for ecosystem planning said that she didn’t see the different listing decisions as being in conflict with each other. Rather, she said, they reflect that mountains goats are doing better overall on one forest than the other.  This may be technically/legally possible since SCC are based on persistence in an individual forest plan area.  However, it doesn’t make a lot of sense to me to manage one national forest to increase the risk to, and to contribute to SCC designation on, another forest.  Moreover, the Planning Handbook states that “species of conservation concern in adjoining National Forest System plan areas” should be considered by the regional forester in making this designation.  This all has kind of an arbitrary ring to it.

As for consistent management across national forest boundaries, The Nez Perce-Clearwater plans to change the shape of the Hoodoo RWA to remove the key snowmobile areas from it, so that boundary between the national forests becomes a boundary for the RWA.  The Forest Service points out that the plan revision process in the hands of forest supervisors, not the regional office.  The forest supervisors disclaim any obligation for consistency, and even suggest that travel planning may produce a different result, and “forest plans and travel management plans are continually updated and amended” so they could change again.  That doesn’t square well with history.  The every-third-of-a-century Forest plan revision should be the time to get it right.  Even if the regional forester doesn’t want to say what the plans must do, that person could simply order them to be consistent along this boundary.