Planning

Sage grouse planning do-over

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This article discusses the last Trump/Zinke twist in the effort to prevent sage listing of the greater sage grouse under ESA.  While sage grouse habitat on federal lands is mostly under BLM jurisdiction, the Forest Service is also a big player, and 20 forest plans were amended in 2015 to include conservation measures that were relied on by the Fish and Wildlife Service in its decision to not list the sage grouse.  Many of the laws and principles in play here also apply to other at-risk species on national forests.  Here are is one principle from Republican Wyoming Governor Matt Mead that I think is especially relevant right now:

“We can’t have wholesale changes in wildlife management every four or eight years. I don’t think that is the best way to sustain populations or provide the necessary predictability to industry and business in our states.”

And then there’s this:

The oil and gas industry group Western Energy Alliance has called for action following the federal review of the sage grouse plans. The group was not one of the key players in developing the plan in Wyoming, but has been vocal on the need for changes that support energy development.

(Where have we heard complaints about something like this before?)

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

What is Beyond the “Fog of War”?

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There are scary and uncertain times ahead for our forests. There is just too much “Fog of War” going on for the public to sort out and fact-check for themselves. Even the ‘fact-checkers’ should be suspect, until proven reliable and bias-free. The rise of ‘fake news’ has blurred multiple lines, and many people, even in mass media, fall for the hoaxes, satire or misinformation. (Example: An article appeared on the Grist website, showing concern about a recall of “Dog Condoms”, presenting the link to www.dogcondoms.com )

New lawsuit – winter motorized recreation in Idaho

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A sneak preview of the September litigation monthly:

A lawsuit filed by the Winter Wildlands Alliance and WildEarth Guardians contends that the Bridger-Teton, Boise and Payette national forests improperly used a “grandfather provision” to avoid preparing a new winter travel plan.

The U.S. Forest Service historically allowed its forests to forgo winter travel plans, but in 2015 changed direction and required them to delineate where snowmobiles can and cannot go. A provision allows forests to skip the planning process if winter routes were designated through a public process, and they haven’t been changed since.

Groups suing contend the Bridger-Teton, Boise and Payette ignored the requirement to plan.

Apparently because they have “been changed since.”

New lawsuit on Arizona copper mine and jaguars

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The Coronado National Forest has been sued by the Center for Biological Diversity for approving the Rosemont copper mine.  The U. S. Fish and Wildlife Service is also a defendant because the issues involve ESA consultation on the mine.

The Rosemont Mine would “significantly impact a number of endangered species and their remaining habitat, including one of the three known wild jaguars in the United States,” said the center.

The mine’s footprint lies “squarely in jaguar critical habitat” important for the survival and recovery of jaguars in the United States, the Center said, cutting through the home territory of “El Jefe,” one of three jaguars spotted in Arizona’s mountain, the center said.

In the lawsuit, the center said that the mine would affect 5,431 acres of land in the Coronado National Forest, including hundreds of acres used as a “dumping site” for more than a billion tons of waste rock and tailings facilities. Approved by the Forest Service, the Rosemont Mine would also include hundreds of acres of fencing that would present a “permanent barrier to wildlife movement.”

“The Rosemont Mine would turn thousands of acres of the Coronado National Forest into a wasteland,” wrote Marc Fink, an attorney for the group. “Even though the agencies found it would permanently damage endangered species and precious groundwater resources, they’re letting the mine proceed,” he said.

The decision to permit the mine required a forest plan amendment.  The Forest Service provided this rationale:

“I have decided to amend the 1986 Coronado forest plan by creating a new MA that provides for
mining of privately held mineral resources while allowing other forest uses to the degree that they are safe, practical, and appropriate for an active mining or postmine environment. Standards and
guidelines have been developed specifically for this new MA (MA 16). See the FEIS, pp. 117–120,
for details. In so doing, this project meets the requirements of 36 CFR 219.

I have determined that this programmatic amendment of the 1986 forest plan is not significant
because it would not significantly alter the multiple-use goals and objectives for long-term land and resource management for the forest as a whole.”

The requirements of “36 CFR 219” it allegedly satisfied were those from the 1982 planning regulations.  The amendment was allowed to proceed under the old regulations because it was initiated prior to the 2012 Planning Rule.   However, both sets of regulations require that forest plans provide for recovery of listed species.  There could be an NFMA violation as well.

Forest planning for hunting

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“A number of environmental groups, including the Endangered Species Coalition, want to keep hunters who use packs of dogs out of public lands in Wisconsin, including the state’s national forests.  The groups say the hunters and their dogs have made the public lands inhospitable, and they want the federal government to launch an investigation into the practice.  Robert Williams is a Madison resident who frequently camps on public lands in northern Wisconsin. He says the packs of hunting dogs wreak havoc on the native wildlife.”

This brings to mind a similar situation in Louisiana. In 2012 the Forest Service amended the Kisatchie National Forest plan to prohibit the “age-old tradition” in Louisiana of hunting deer with dogs because of user conflicts.  In Louisiana Sportsmen Alliance v. Vilsack, a federal district court upheld the forest plan amendment. It stated: “We are conscious of the fact that KNF is a National Forest, owned by the United States and to be utilized in the best interests of all. The law empowers the agency to make precisely the kinds of decisions made here.”  (The Fifth Circuit then held that plaintiffs had not established standing to sue and dismissed the case.)  If the agency has the authority to regulate recreation that impacts species listed under ESA, then its failure to do so in Wisconsin might violate the law.  (However, under the 2012 Planning Rule, forest plans do not directly regulate users by themselves, and a separate closure order would be required.)

“Hunting group sues to stop Ochoco off-road trails”

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This is about the Ochoco Summit Trail System Project:

The project proposes to designate a trail system in the Ochocos specifically for off-highway vehicles. The trail would be open seasonally and it would be built using mostly existing roads and trails tied together by some currently open roads. It would be a system where motorcycles, quads, side-by- sides, and Jeeps could ride trails designed specifically for enjoyment and recreation. The trail  system would be accessed at designated staging areas, parking areas, or trailheads.

The current Final Supplemental EIS has five alternatives for the trail system that range in distance from 124 miles (Alt 2) to 158 miles (Alt 4), and the No Action alternative (Alt 1).

The idea for this system originated in 2009 when the Ochoco National Forest conducted travel management planning. The 2005 Travel Management Rule required the forest to designate a system of roads, trails, and areas for motorized use and to prohibit cross-country travel. Under the motorized travel system adopted in 2011, recreational OHV users lost a lot of opportunity. More than 80 percent of the forest was made off-limits to OHV use and most of the roads still open to OHV driving lack connectivity and must be shared with cars and trucks. Through an engineering analysis, some system roads were also deemed unsafe for mixing non-street legal OHVs with
passenger vehicles and commercial traffic.

The lawsuit:

The Oregon Hunters Association, the state’s largest, pro-hunting organization made up of more than 10,000 members, filed the lawsuit in the Pendleton Division of the United States District Court on Aug. 31, arguing the decision to approve the trails is not supported by scientific wildlife research the Forest Service completed on the Starkey Experimental Forest in Northeast Oregon.

The hunters association argues the addition of trails and roads would increase use, which Forest Service scientists have shown adversely affects elk habitat, according to a news release from the hunters association Research on the Starkey Experimental Forest found the animals avoid areas within 1.1 miles of roads or motorized trails.

This idea of designating a motorized trail “system” as a distinct “project” seems kind of unusual to me (it’s not just a “travel plan”).  The conflicts with wildlife are not, however.  There’s also a claimed violation of NFMA.  This lawsuit (“environmental extremists” abusing the legal system?) might get at some interesting questions about motorized recreation use on public lands.

Logging in potential wilderness could foreclose forest plan options

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Taking this story about the Pisgah National Forest at face value, it raises the question of what kind of management is appropriate while a national forest is revising its forest plan.  We just looked at another example of how the Helena-Lewis and Clark National Forest appeared to be anticipating changes that would result from its revised plan, possibly requiring a plan amendment to do so if the proposed project is not consistent with the current plan.

Here, let’s assume that the project to log an area that the locals want to be wilderness is consistent with the current plan, but it would be inconsistent with alternatives being considered for plan revision (normally there would be a forest plan alternative with all potential wilderness areas recommended for wilderness).  NEPA addresses this situation:  “Agencies shall not commit resources prejudicing selection of alternatives before making a final decision” (40 §CFR 1502.2(f)).  However, for a “program environmental impact statement” that is in progress, it implies an exception for where activities are “covered by an existing program statement” (40 CFR §1506.1(c)); it actually restricts actions where they are NOT covered by a plan EIS and is silent on where they are.

I have sometimes wondered if the project planning teams and the forest planning team are talking to each other.  It certainly doesn’t look good when they seem to be working at cross-purposes, and it could be illegal.

Court buys FS interpretation of viability for bighorn sheep

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On July 31, the federal district court for Wyoming found that the revised Medicine Bow National Forest Plan met the requirement of the 1982 planning regulations to manage habitat “to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.”  At issue was the meaning of additional language in the regulation that “habitat must be well distributed so that those individuals can interact with others in the planning area.”  The court determined that, “there is no requirement that the Forest Service manage habitat so as to maintain bighorn herds, at maximum potential, across the entire Forest, at all potential habitat locations…”

There are three reintroduced herds of bighorn sheep on the national forest.  The plan would only protect two of those from exposure to disease risks from domestic sheep, which is the major risk factor for bighorns, by eliminating domestic sheep grazing.  The small unprotected herd was stable but had never thrived, and was considered a low priority by the state of Wyoming.  The court found that the viability regulation was ambiguous and the agency’s interpretation in this case had changed during the administrative review.  Nevertheless it held that the record adequately explained the agency’s interpretation that protecting the two herds from domestic sheep and providing other plan direction that would benefit all three herds would meet the viability requirement:

“The Regional Forester made the determination, given all information available to him, that emphasizing domestic sheep grazing over the Encampment River herd in the Sierra Madre range, the Medicine Bow National Forest would still be able to manage the habitat of the Laramie Peak and Douglas Creek herds in order to achieve viability of bighorn sheep.”

The court found that this was determination was not arbitrary or capricious.  (Biodiversity Conservation Alliance v. Jiron)

Forest plans and “valid existing rights”

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This is about forest plan litigation – sort of.  The Michigan Wilderness Act included a provision protecting “valid existing rights.”  A series of forest plan amendments by the Ottawa National Forest imposed restrictions on motor boat use on a lake that was mostly within a wilderness area but partly touching private land.  A 2007 Forest Order, subjected violators of Amendment No. 5 to criminal liability.   An earlier case concluded that Michigan riparian water rights allowed for “reasonable use” of the lake’s surface water, and that, “the motorboat restrictions interfered with Thrall’s ‘valid existing right’ to use gas motor boats on Crooked Lake’ and thus fell outside the Forest Service’s regulatory authority.”

The question in the current case was whether purchasers of lakefront property in 2010 also had “valid existing rights” to unrestricted motorboat use.  After sorting out the timing questions in favor of the private owners in this case, the Sixth Circuit court revisited the nature of riparian rights, holding that the Forest Service could only prohibit unreasonable uses:

“But the Forest Service has not shown that it would be unreasonable under Michigan law to travel on 95% of the lake above a low-wake-zone speed. If you think otherwise, try being at one end of a three-mile lake with a five-mile-an-hour speed limit as an unexpected storm sets in.”

(Evidently what’s reasonable in Michigan is different from what’s reasonable in wilderness.)