Planning

The myth of “coordination”

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In recent years this the idea of “coordination” has been sold to local governments as a legal tool to make federal land managers do what the locals want with national forest plans.  It’s a myth that periodically needs busting.  This article describing the response of the Malheur National Forest and a document from the Northern Region provides a pretty good summary of the history and reality.

“Based on recent local government resolutions or ordinances and letters to some national forests, it appears that some local government officials believe the (National Forest Management Act) coordination requirement means the Forest Service must incorporate specific provisions of county ordinances into forest plans or that the Forest Service must obtain local government approval before making planning decisions,” Hagengruber said.

“This position overstates the NFMA obligation of the Forest Service,” he continued. “The statute does not specify what actions are required to coordinate Forest Service planning with local government planning, and it does not in any way subordinate federal authority to counties.”

“Rather,” he continued, “the Forest Service must consider the objectives of state and local governments and Indian tribes as expressed in their plans and policies, assess the interrelated impacts of these plans and policies, and determine how the forest plan should deal with the impacts identified.”

Disagreement About Fuel Treatment: Exhibit A?

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Still More Agreement About Fuel Treatment: Conservation Colorado and former Secretary Zinke

Sharon said:

That’s why I’m thinking that finding some projects that entail:
1. FS clearcutting in California
2. Fuel treatments in backcountry
3. Fuel treatments taking out big fire-resilient (living?) trees

Would help us understand exactly what the issues are.

I think this project might be a good place to start:

Destructive wildfires along the California-Oregon border in recent years has the U.S. Forest Service pursuing projects to clear forests of burnt debris and trees that could feed future fires. One of those projects included selling the rights to log old-growth trees in Northern California, until a federal judge halted the timber sale on Friday.

Environmental groups asked a federal court to halt the Seaid-Horse timber sale in the Klamath National Forest. They say it would violate the Northwest Forest Plan by clear-cutting protected old-growth trees and harming Coho salmon.

Its purpose is: “Reduce safety hazards along roads & in concentrated stands, reduce fuels adjacent to private property, & to reduce the risk of future large-scale high severity fire losses of late successional habitat.”

So it’s got California, clearcutting, fuel treatment and big trees.  It’s also got wildlife issues, which is the other point of disagreement I suggested.  Maybe not back-country, but certainly not front-country – mid-country? 

It even comes with a spokesperson who is probably familiar with our questions:

Western Environmental Law Group attorney Susan Jane Brown says old-growth trees in Northern California provide a habitat for threatened species such as the northern spotted owl. They’re also the most resilient in enduring wildfires.

“We could agree that cutting small trees is a good thing to reduce fire risk, but when it comes to cutting very large, very old trees, that’s an entirely different matter,” Brown said.

 

 

Nantahala-Pisgah forest plan comments

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The third of three articles on the results of a Carolina Public Press Freedom of Information Act request for the more than 6,000 comments focuses on governmental emails.

Hmmm … maybe this is one of those articles where we should debate the author’s approach, especially his choice of who to interview (somewhat tongue-in-cheek).  Here is one thing a “retired Forest Service bureaucrat” had to say …

Mostly absent from the collaborative groups are elected officials. While elected officials represent residents, Friedman said, they are seldom effective members of stakeholders groups that strive for collaborative solutions.

“They may not share the level of passion and knowledge of individuals, experts and special interest groups that participate in stakeholders groups,” she said.

An interesting theory.  Friedman had quite a few things to say.  (Maybe she can explain why the locals insist on calling this the Pisgah-Nantahala National Forest.)

(The article includes links to a number of articles on this Forest’s plan revision process.)

Another gas pipeline down the tubes?

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

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

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

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

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

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

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

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

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

Trump issues orders to the Forest Service

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In case you missed it, on December 21, President Trump issued an executive order: “EO on Promoting Active Management of America’s Forests, Rangelands, and other Federal Lands to Improve Conditions and Reduce Wildfire Risk.”  This should answer all of our questions about what the agency’s priorities are for the duration of his administration.  It’s a short read, but here’s my take.

The problem: ” For decades, dense trees and undergrowth have amassed in these lands, fueling catastrophic wildfires.”   (No mention of climate change of course.)

The cause:  “Active management of vegetation is needed to treat these dangerous conditions on Federal lands but is often delayed due to challenges associated with regulatory analysis and current consultation requirements. In addition, land designations and policies can reduce emergency responder access to Federal land and restrict management practices that can promote wildfire-resistant landscapes.”  (In other words, the laws and the public.)

The solution:  “Post-fire assessments show that reducing vegetation through hazardous fuel management and strategic forest health treatments is effective in reducing wildfire severity and loss.” “To protect communities and watersheds, to better prevent catastrophic wildfires, and to improve the health of America’s forests, rangelands, and other Federal lands, the Secretaries shall each develop goals and implementation plans for wildfire prevention activities and programs in their respective departments.”  This includes, “Reducing vegetation giving rise to wildfire conditions through forest health treatments by increasing health treatments as part of USDA’s offering for sale at least 3.8 billion board feet of timber from USDA FS lands…,” and, “the Secretaries shall identify salvage and log recovery options from lands damaged by fire during the 2017 and 2018 fire seasons, insects, or disease.”  (I’m looking forward to a definition of “health treatments” so that we can tell if they are increasing that share of the volume targets.)

The EO “promotes” this solution by calling for the kind of coordination, streamlining and speeding up the legally required processes that has been ongoing in the agency, and for a new “wildfire strategy” by the end of the Trump Administration.  For the most part it sounds to me like the traditional charge of “cut corners to get the cut out” “consistent with applicable law and subject to the availability of appropriations.” That last part usually doesn’t seem to get the same priority, which typically leads to more litigation.  Interesting that there is no mention of the wildland urban interface (which is where pretty much everyone agrees should be the priority).

Producing the wildfire strategy does include a requirement to “Review land designations and policies that may limit active forest management and increase the risk of catastrophic wildfires…”  That seems to implicate forest plans, but it doesn’t suggest changing them, and if there are such limits they are probably there for a good, publicly supported reason.

Oh, and no mention of science.

“Interest group emails compete to influence NC national forests’ future”

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An article from Carolina Public Press looks at how “Interest group emails compete to influence NC national forests’ future.”

“Thanks to a federal Freedom of Information Act request, Carolina Public Press has studied thousands of emails and other comments delivered to the Forest Service. This, the second of three articles, examines the comments from individuals representing the views of advocacy organizations that have campaigned to influence the Forest Service’s management strategies.”

Doesn’t mention form letters.

Anyone know of other analyses of letters on other USFS projects?

BLM land management plans maybe prevent species listing

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At least that is what I think happened, but because of the government shutdown, I can’t confirm the details.

The Trump Administration has declined to extend federal protections for two plants native to the Mountain West.

Julie Reeves, plant and wildlife biologist with the service, said the plants didn’t make the cut because another federal agency, the Bureau of Land Management, prohibits energy development and other potentially damaging activities near their habitats.

“Those (threats) are not going to rise to the level of high magnitude that could affect the species because of protections put in place by the BLM,” she said.

A good idea for Forest Service plans regardless.

Trapping lawsuits

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Neither of these is going to show up in the NFS litigation summaries because the Forest Service is not a party to the litigation (yet), but the trapping at issue occurs on national forest lands, and the Forest Service does have the authority to regulate trapping that occurs on national forest lands.

Two environmental groups have sued the Oregon Department of Fish and Wildlife for failing to ban the trapping of Humboldt martens in Oregon’s coastal forests.  Humboldt martens were proposed for listing as a threatened species in October.  Threats include “loss of habitat, wildfire, changing climate, trapping, vehicle mortality, vegetation management, exposure to toxicants, threats from predators and effects associated with small and isolated populations.”  According to the Center for Biological Diversity news release, “Following the largest mammal survey ever conducted in the state, researchers from Oregon State University and the U.S. Forest Service recommended eliminating trapping of coastal martens as a first step in rebuilding the state’s imperiled populations.”  Good for the Forest Service.  Their involvement may have something to do with the fact that their “vegetation management” could be curtailed if the species is listed.  Perhaps they will intervene in the lawsuit on the side of CBD et al?  Probably as likely as them invoking their own authority to regulate trapping as a use of national forest lands.  But that may be better than being added as a defendant.

The Environmental Protection Information Center has filed a notice of intent to sue the federal USDA Wildlife Services.  According to this article, they allege that the agency’s program for killing beavers harms endangered fish because beavers “benefit salmon and steelhead by building better habitat conditions, including creation of ponds used by salmon and increasing stream flow in summer months.”  They are asserting that the Wildlife Services must consult on the effects of this program with the National Marine Fisheries Service.  While the Forest Service is not mentioned, nor is the geographic scope, this certainly includes practices on national forest lands.  The Forest Service has a Memorandum of Understanding with Wildlife Services, addressing among other things “managing damage caused by indigenous, non-native and feral vertebrates on NFS lands,” in which the Forest Service is designated as the lead agency for NEPA compliance.  While the MOU acknowledges the need to comply with the Endangered Species Act, this responsibility is not designated.  It appears that the Forest Service at least shares any obligation to consult with Wildlife Services and could be named as a party.

 

Forest plan promotes “budget-busting suppression spending”

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This article discusses a report from FUSEE (Firefighters United for Safety, Ethics, and Ecology – dutifully described as funded by environmental organizations) on the 2016 Soberanes Fire on the California coast:

In the first week, the blaze destroyed 57 homes and killed a bulldozer operator, then moved into remote wilderness in the Los Padres National Forest. Yet for nearly three more months the attack barely let up.

The Soberanes Fire burned its way into the record books, costing $262 million as the most expensive wildland firefight in U.S. history in what a new report calls an “extreme example of excessive, unaccountable, budget-busting suppression spending.”

The report suggests the Forest Service response was the result of a “use it or lose it” attitude to spend its entire budget, which had been boosted by $700 million because of a destructive 2015 fire season. The agency managed to spend nearly all its 2016 money in a less-active fire season on about half the amount of land that burned the year before.

“They just kept going crazy on it,” report author Timothy Ingalsbee said. “It wasn’t demand-driven. It was supply-driven. They had all this extra money Congress had given them, and they had to justify that.”

An internal Forest Service review produced last year and obtained by the AP reached some of the same conclusions as Ingalsbee.

The review found forest managers didn’t think they could deviate from the “overwhelming force concept” aimed at suppression. It also said the agency’s protocol for managing long-term wildfires “does not sufficiently evaluate and adjust to changing risk.”

One challenge fire commanders faced was an outdated forest management plan for Los Padres that called for full suppression of all wildfires, Ingalsbee said.

Mike Warren, a retired National Park Service firefighter who reviewed the report, questioned the wisdom of suppressing fires in remote wilderness where flames can help eliminate brush and other flammable vegetation that could fuel a later wildfire.

Of course that highlighted part made me curious about what this 2005 forest plan said.  I assume that interpretation is based on a table of “suitable uses” (Table 2.3.4) that shows that none of the six management areas are suitable for “Wildland Fire Use Strategy.”  I can see how that would lead to an approach of burning money.

I also took a quick look at the proposed final revised plan for the Inyo National Forest, to see what might be different.  There are four fire management zones (p. 75) (Inyo zones).

Wildfire responses include a spectrum of strategies that include full suppression, confine/contain, monitoring, and management to meet resource objectives. The entire spectrum of strategies is available in all the zones and wildland fires will be actively managed in all the zones to meet objectives.

That includes the “Community Wildfire Protection Zone,” where (p. 76):

Wildfire is suppressed under most weather and fuel conditions due to the very significant risk of potential economic loss and public safety concerns posed by a wildfire occurring within this zone.

The article also acknowledges the “pressure from politicians, homeowners, businesses, loggers and ranchers to control the fire.  I suppose that kind of pressure was part of why this forest plan says what it does, and other places have different issues, but the forest planning process is a good place to talk about what the tradeoffs are.

Blue Mountain Forest Plan Objection Meetings

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This photo is from an earlier planning meeting for the Blue Mountains.

Trouble shooting request: this shows up as upside down on my phone but right side up on my computer. If yours shows up upside down, please let me know what device you are using in the comments. Thanks!

I came across this letter to the editor in the Capital Press. I’m interested in how this is working. What was it like to be involved for objectors? For the FS folks? What is the role of the “team from D.C.?”. I hope that some readers can add their impressions in the comments below.

To every one of you who attend the first set of meetings on the Blue Mountains Forest Plan Revision: Thank you. It was great to see everyone who had traveled from around the West to have their objections heard or to support those who were speaking out about the plan.

I was impressed with the care each of you took to present your objections, but even more, I was awe struck at the control each of you showed in a matter that is very dear to each of our hearts and that impacts our ability to sustain our families in Northeastern Oregon. While open access to our mountains seems to be such a simple concept when it comes to subsistence use, it eludes those that make decisions who have never had to worry about heating their homes with firewood or had to extract food that supplements our families through the winter.

While we saw a solid turn out of objectors in the meetings from Nov. 27th to Dec. 1st, I fear a great deal of those who objected missed out on these first meetings and did not have their voices heard. The team from D.C. stated we would hear back from them sometime at the end of January and we should expect additional meetings sometime in March to see what the next steps would be.

If the meetings are held in March it will be paramount that every objector attend the meetings and participate in the process. I ask each of you that know you are an objector to follow Forest Access For All on Facebook to get current information on the process and how to participate.

These meetings sounded very interesting. Here is the link with the information about them, and here is the link to the reading room for objections. There seem to 353, which would be quite a few objectors to meet with.

Resolution meetings between objectors, interested persons, and Forest Service Reviewing Officers have been scheduled between November 27 and December 1, in five different cities in Eastern Oregon. Meeting locations were identified based on where the majority of Objectors and Interested Persons reside. Invitation letters and meeting agendas were sent to all eligible objectors and interested persons (Review Resolution Meetings Invitation to Objectors and Interested Persons.) Although the meetings are open for public observation, only Objectors and Interested Persons will be invited to actively participate in the resolution meetings.

There is potential for a large number of objectors and interested persons to attend the resolution meetings. To help facilitate productive dialogue between objectors, interested persons, and Reviewing Officials on the main objections issues, there will be multiple, two-hour discussion sessions during each meeting. (See agenda for each meeting, attached to Resolutions Meeting Invitation.) Up to 20 Objectors or Interested Persons will participate with the Reviewing Officers in each discussion session.