Planning

Some red meat for the anti-litigation crowd

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Here’s a story about an enjoined timber sale that might be burning up right now.  It will no doubt become Exhibit A for arguing why we should not allow the public to sue the government over its land management decisions.

“Both the Park Creek and Arrastra Fires on the Helena-Lewis and Clark National Forest were ignited by lightning storms that spread through dense stands of dead timber. And both are located within the area of the Forest Service’s proposed Stonewall Vegetation Project, which was halted when two environmental litigant groups successfully convinced a federal judge to issue a preliminary injunction to halt the project.”

I just have to question the conclusions:  “The preliminary injunction against the Stonewall project, and the resulting fires …”  and the idea that environmental litigants should be “held accountable for their actions.” First there is the question of what exactly their actions caused (the fires?), and second is the idea that there should be liability associated with winning a lawsuit.  I think the judge allocated accountability in this case to the Forest Service for failing to follow the law.  They could have reconsulted on lynx critical habitat long ago, and the court said they should have, and if they had, the project would have probably occurred on schedule.

 

Utah counties make plans for federal lands

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Sagebrush Rebellion light?

The state required counties to make these plans, which by itself should be a good thing (especially where there has historically been anti-planning sentiment). “This helps us to work with our federal partners to ensure Summit County’s interests are part of the conversation on how federal lands are managed,” said Sean Lewis, a Summit County planner and project manager for the drafting of the plan.  “This provides a template for us to work together with our Forest Service managers,” (Summit County Council member) Carson said. “We want to be partners with them. We don’t want to take stuff over from them and I am confident we will have a lot in common.”  This makes sense.

However, Summit County is a recreational drive from Utah’s urban centers, and we should expect other more isolated counties, with encouragement from anti-federalists, to want to use these plans to impose local control when federal land planning occurs there.  The article refers to the BLM requirement for a “consistency review” of local plans, but the 10th Circuit (New Mexico ex rel. Richardson v. BLM) held that, “A meaningful opportunity to comment is all the regulation requires.”  Nevada was similarly unsuccessful in using this provision to challenge federal planning for sage grouse (Western Exploration v. USDI).

The Forest Service Planning Rule also has requirements to “coordinate” national forest planning with local planning, which some would like to view as a consistency requirement.  But the Planning Rule also says, “The Forest Service retains decisionmaking authority and responsibility for all decisions throughout the process.”  The bottom line is that states have no authority over federal land management.

Planning for pipelines – not

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A Draft Record of Decision document released by the United States Forest Service would allow 11 exceptions to the Jefferson National Forest Plan and adopt an amendment that allows old growth forests, rare species and wetlands to be destroyed by the proposed Mountain Valley Pipeline.

The Draft Record of Decision (ROD)  states that “the proposed plan amendment is needed…because the MVP Project cannot meet several Forest Plan Standards…to protect soil, water, riparian, old growth, recreational and visual resources.” (ROD, pg. 4)

The ROD refers to Executive Order 13766 recently issued by President Trump that directs the USFS to “expedite, in a manner consistent with the law, environmental reviews and approvals for all infrastructure projects that are a high priority for the Nation, such as …pipelines.”

Time for the energy development battles to move to court?   This article mentions two potential litigation risks.  The Forest did not consider any pipeline alternatives that would be consistent with the forest plan.  It also adopts plan amendments that were not included in the DEIS (arguably these are new decisions that were never scoped).  It could also test the amendment procedures under the 2012 Planning Rule.

9th Circuit takes out NFMA diversity requirement

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In a 2-1 decision, which allowed the Big Thorne timber project to proceed on the Tongass National Forest, the Ninth Circuit Court of Appeals affirmed a district court opinion that the Forest Service had complied with NFMA when it adopted forest plan direction related to managing old growth forest for deer to support viability of Alexander Archipelago wolves (an at-risk species).  The dissent pointed out that prior Ninth Circuit precedent had established that:

the forest plan must comply with substantive requirements of the [NFMA] designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest . . . .” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961–62 (9th Cir. 2002). Specifically, 36 C.F.R. § 219.19 requires that “[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” Our law is clear that an agency must abide by its own regulations.

The majority (both judges appointed by republican presidents) charted a new course, citing a a BLM case that had nothing to do with NFMA:

Instead, an agency need only supply “a rational connection between the facts found and the conclusions made.” Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1131 (9th Cir. 2007).

Instead of recognizing the language of NFMA that requires plans to “provide for plant and animal diversity,” the majority opinion cites language that refers to the Multiple-Use Sustained-Yield Act (contained in a case that was not about forest plans).  It concludes:

The NFMA gives the Forest Service flexibility because the Service has many different goals—conservation, commerce, recreation, and so on. See 16 U.S.C. § 1604(e)(2); McNair, 537 F.3d at 993–94. The statute reflects a congressional judgment that balancing these goals calls for policy judgments—judgments that often require trade-offs among worthy objectives, such as wolves and logging jobs.

In other words, NFMA did not take away any of the discretion provided by MUSYA.  This should be news to a lot of people, including the Forest Service.  This case would be a really good candidate for en banc review by the Ninth Circuit.

Here’s a local news story.

A conservation plan puts science ahead of politics

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This story about the Pima County Arizona conservation planning effort isn’t directly about national forests, though there should have been (and probably was) coordination with the Coronado National Forest.  And my point here isn’t about the success of a conservation plan driven by the need to protect at-risk species (arguably an ESA success story).  It’s about the role of scientists in the process (Sharon).

“County leaders stated from the outset that their primary goal was to conserve biological diversity through a scientifically defendable process, not to come up with a plan that everybody could agree on,” wrote the late urban planning specialist Judith Layzer in her 2008 book Natural Experiments, which analyzed more than a half-dozen regional land-conservation efforts.

The scientists and county staff discussed the plan in public sessions, but county officials made it clear that their work would not be derailed by complaints from developers and other critics. The scientists established standards for identifying biologically valuable lands and used computer models, observation records and the judgment of local naturalists and recognized experts to come up with a biological preserve map.

In contrast, in other multi-species plans, scientists, politicians, agency staffers, developers and moderate conservationists collectively determined which lands to save, thus bringing political and economic considerations into the science.

Looking back this spring, Huckelberry, a former county transportation chief, says he was simply applying the best practices from his previous job, highway planning, to land conservation. Typically, both a technical committee and a citizens’ committee review big road projects, he says: “The whole purpose of a technical advisory committee is not to play with the numbers, not to slant the analysis. We felt the political side could potentially be used to manipulate the scientific side, and felt that would bias the entire process.”

After the science team created a map of the proposed preserve system, a separate steering committee of 84 people, including developers, environmentalists and neighborhood leaders, haggled over its details. By then, though, the plan’s broad vision was already solidly in place.

Bringing this back to the Forest Service, this is similar to how a team of biologists developed the Lynx Conservation Assessment and Strategy, which was then followed by forest plan amendments that “haggled over the details.”  The Forest Service doesn’t like some of things it can’t do, but there haven’t been challenges to the science.  The grizzly bear conservation strategies seem to be more like the alternative process, where what the land managers want is infused into the discussions of the science.  (The Yellowstone strategy was already voided by a court once because of scientific issues.)

Are Trump’s climate censors at the door of forest planning?

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In conjunction with publishing its notice of intent to prepare an EIS and draft forest plan, the Gila National Forest revealed a bit of the thinking going on on at least one national forest about whether they should continue to address climate change in the forest planning process.

Throughout the assessment process, the Forest team took a close look at the significant effects of climate change on the Gila. According to Schulz, directives from U.S. President Donald Trump to other agencies to release no evidence of climate change they find have not been represented in the assessment report.

“The documents still do talk about climate change,” he said. “You will see that. We will just see how this all works moving forward. There are a lot of aspects we will still be talking about using some aspects of terminology, like ‘drought.’ There is clearly strong local interest in managing the effects of climate change.”

So maybe they would address climate change without saying the words?  At least they’re moving forward, for now.  It’s actually hard to imagine major backsliding in forest planning since the planning rule requires the use of the best available scientific information, and I think the Forest Service has been a leader in trying to apply climate change science.  The point about local interest is important, too.  If nothing else, if someone brings it up, the agency can’t arbitrarily dismiss it.

Forest Service and BLM slightly lose sage grouse lawsuit in Nevada

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The state of Nevada, nine counties, three mining companies, and a private ranch challenged the adoption of greater sage grouse conservation measures in Forest Service and BLM land management plans.  Most of the agency actions were upheld in Western Exploration v. USDI (D. Nevada), including compliance with FLPMA requirements of BLM for multiple use and consistency “to the extent practical” with local plans, and compliance with NFMA.  Here’s the court’s language on Forest Service multiple-use:

“Plaintiffs contend that the SFA (mineral) withdrawal zones, travel restrictions on 16 million acres of land, and grazing restrictions violate the multiple-use mandate of NFMA. They also challenge that the FEIS violates multiple-use principles because it closes millions of acres of land to important uses, replaces “no unmitigated loss” with a requirement for “net conservation gain,” and creates uniform lek buffers that are “no-go zones.”

“The Court’s review of whether the Forest Service Plan violates NFMA’s multiple use mandate is necessarily narrow, and it may consider only whether the Forest Service contemplated all relevant factors in making its determination. First, it is unclear to the Court how travel and grazing restrictions manifest the Forest Service’s failure to consider multiple use. To the contrary, the restrictions demonstrate a balance between conservation of greater-sage grouse habitat and sustainable human use of natural resources. Second, the Court fails to see how multiple use mandates that any particular parcel of land be available for any particular use.  While Plaintiffs point out certain land closures in the USFS Plan, such as complete exclusion of new solar and wind energy projects (on SFA, PHMA, and GHMA), the Plan does not exclude all possible human uses on those lands. Finally, Plaintiffs fail to demonstrate how the “net conservation gain” and lek buffer zones preclude multiple use or demonstrate a failure on the part of the Forest Service to consider all relevant factors. In fact, the move from “no unmitigated loss” in the DEIS to “net conservation gain” in the FEIS demonstrates that the Forest Service reconsidered whether their initial standard consistently balanced sustainable human use with adequate habitat conservation.”

The court did not uphold compliance with NEPA. Plaintiffs had identified several changes between the draft and final EIS, and the court agreed that, “the designation of 2.8 million acres as Focal Areas in Nevada amounts to a substantial change relevant to environmental concerns, requiring the Agencies to prepare an SEIS.  The court focused on the fact that these lands included the town of Eureka, Eureka County’s landfill, power lines, subdivisions of homes, farms with alfalfa fields and irrigation systems, hay barns, and important portions of the Diamond Valley area, and there would be a “spillover” effect from the changes in adjacent federal land management that warranted additional analysis and opportunity to comment.  Because of risk of harm to sage grouse, the court did not enjoin the plan amendments pending completion of the new analysis.

9th Circuit upholds EA for Shasta-Trinity logging project

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The mantra I always use to hear was don’t use an EA if you might get sued.  Maybe things are different now?  Or maybe this was just one of those EAs that looked a lot like an EIS.

  • The Project’s proposed treatment methods will retain all existing snags greater than 15 inches in diameter, “unless deemed a safety hazard by the purchaser, or in the case of a need to meet coarse woody debris (CWD) requirements.” Because the Project only removes snags in two limited circumstances, it was reasonable for USFS to conclude that treatment methods will not reduce snag numbers below Forest Plan standards.
  • The Project’s Environmental Analysis considered a total of fourteen alternatives, five of which were discussed in detail.  The USFS reasonably concluded that not treating 17% of the Project area would thwart the major purposes of the Project.
  • USFS properly analyzed the cumulative impacts of the Project.  The Council on Environmental Quality (“CEQ”) Handbook does not require USFS to use the owl’s “natal dispersal” distance in its analysis.
  • While the uncertain effect of fires in spotted owl foraging areas may cast doubt on some aspects of the Project, the Project’s anticipated effects as a whole are not highly uncertain and do not trigger the need for an EIS.  Also, logging in designated critical habitat will be limited to areas that support lower-quality owl habitat—and no forest treatment will occur in nesting and roosting habitat.  “We think USFS has provided a ‘convincing statement of reasons’ to explain why [the Project’s] impacts are insignificant.”

Conservation Congress v. U. S. Forest Service.  March 31, 2017.

The Impact of Sound Forest Management Practices on Wildfire Smoke and Human Health

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– Some would have us turn our forests back to a time before any of mankind inhabited North America.
– Some suggest that we should limit our management of forests to that done by native Americans pre European times.
– Some of us see a problem with limiting ourselves to these past practices because of the current population level.
– Some of us even see that properly validated forest science carried out in environmentally sound ways can improve the sustainability of our forest ecosystems and all of the species that depend on them for habitat, store carbon and reduce our dependence on the use of non-renewable, environmentally unfriendly resources which are being extracted from their long term, safe, natural storage underground.

This article (J. For. 115(●):000–000 http://dx.doi.org/10.5849/jof.16-042
Copyright © 2017 Society of American Foresters) “fire & fuels management Aligning Smoke Management with Ecological and Public Health Goals” seems to me to be a good starting point for a much neglected discussion on why mankind has to manage our federal forest better just from the point of protecting human health.

A) Motivation for the study comes from:
1) “mismatches between the scale of benefits and risks make it difficult to proactively manage wildland fires to promote both ecological and public health.”
2) “A recent update to wildfire smoke policy proposed by the US Environmental Protection Agency (US EPA) recognized the need to restore and maintain more frequent fire regimes through intentional use of fire, while asserting that protecting human health remained the agency’s “highest priority” (Office of the Federal Register 2015). Therefore, addressing both forest restoration and air quality objectives remains a central challenge.”
3) “Hurteau et al. (2014) found that under a business-as-usual climate scenario, this escalation in fire potential is likely to increase wildfire emissions in California by 50% by the end of this century unless agencies take a more proactive approach to fire use.”
4) “… current policies have permitted regulators to curtail fires intentionally managed for resource objectives in response to nuisance complaints by a few individuals, despite the potential for such
fires to have long-term collective benefits (Engel 2013). Because the impact and likelihood of smoke increase the longer that fire is kept out of the system, extensive fire suppression can result in a vicious cycle that becomes more and more costly to escape until the system fails, as represented by extreme
wildfires (Calkin et al. 2015).”
5) “Smoke and wildfires can impact public health in ways other than particulate pollution, including ozone pollution, increased stress during and after wildfires, and strains on medical services and communication systems (Fowler 2003, Kumagai et al. 2004, Finlay et al. 2012). Despite these broader
considerations, public health regulations for smoke typically focus on a 24-hour average of PM2.5. Values that exceed 35ug/m3 are considered unhealthy for sensitive groups, which include pregnant women, young children, elderly individuals, smokers, and people with chronic respiratory problems such as asthma (Delfino et al. 2009, Kochi et al. 2010, Moeltner et al. 2013).”

Please note that this study was not offered as a be all and end all study. In my opinion, the main objective was achieved. That objective being to give order of magnitude numbers to justify further research and further stimulate the process of rethinking current regulations and forest management policies.

B) Known Facts:
1) California: “The wildfire emissions in 2008 represented 68% of all PM2.5 emissions in the state, and they caused notable public health impacts (Wegesser et al. 2009, Preisler et al. 2015)”
2) “An important spatial mismatch results from the fact that large wildfires can create smoke impacts on distant urban populations. The risk to urban populations from regional-scale smoke impacts has increased as California became the most urbanized state in the United States, with 90% of its population residing within cities that have more than 50,000 people and another 5% living in smaller urban clusters (US Census Bureau 2015). Many of those urban areas are situated in valleys or basins that have poor air quality due to human activities as well as natural conditions that often trap pollutants (Ngo et al. 2010, Nakayama Wong et al. 2011). For example, the four metropolitan areas in the United States with the highest levels of particle pollution are all located in California’s Central Valley (American Lung Association 2015). Because many urban populations already experience poor air quality during the summer, they are particularly vulnerable to health impacts from wildfires (Delfino et al. 2009, Cisneros et al. 2014)”
3) “Within the study area, daily emissions from both prescribed burns and resource objective wildfires remained well below 500 tons PM2.5 , whereas the Rim Fire had 20 days exceeding that threshold (nearly half of its entire period of active fire growth) and peaked at nearly 11,000 tons PM2.5 /day on Aug. 26, 2013 (Figure 2). During the late summer, air quality is already problematic in downwind areas such as the Lake Tahoe Basin and San Joaquin Valley”
4) “Ground-level monitoring indicated that these large smoke plumes coincided with highly polluted days in Reno, which occurred on August 23–25 and again on August 28–29, when PM2.5 values exceeded the “unhealthy for all populations” standard (55.5ug/m3) (Figure 4F). Such high levels are such a serious health concern that people are advised to avoid going outdoors. Navarro et al. (2016) reported that very unhealthy and unhealthy days occurred at 10 air monitoring sites in the central Sierras, northern Sierras, and Nevada during the Rim Fire.”

C) Data – Smoke Plume data was used to “compare differences in smoke impacts between resource objective wildfires and full-suppression wildfires within the San Joaquin River watershed in California’s Sierra Nevada, the Sierras that burned between 2002 and 2013, including 10 resource objective wildfires (totaling 20,494 acres), 17 prescribed fires (totaling 6,636 acres), 4 small wildfires (totaling 12,025 acres), and the exceptionally large Rim Fire (257,314 acres). … the limited availability of smoke monitoring data, particularly before 2007, requires a focus on modeled emissions.”

D) Findings: Reasonable Expectations from the use of increased forest management to reduce the impact on human health of catastrophic wildfires include:
1) “Our results indicate that the 257,314-acre Rim Fire of 2013 probably resulted in 7 million person-days of smoke impact across California and Nevada, which was greater than 5 times the impact per burned unit area than two earlier wildfires, Grouse and Harden of 2009, that were intentionally managed for resource objectives within the same airshed.”
2) “The combination of a warming climate and accumulation of forest fuels ensures a future with more large fires and smoke in dry western US forests. We have outlined framework to more directly account for regional-scale smoke impacts from these events using surface monitoring and satellite observations of smoke. Managing large fires for resource objectives can shift the release of inevitable emissions to conditions that minimize large-scale smoke impacts, by controlling fire spread based on available dispersion and monitored impacts and creating anchors for containing future hazardous fires. When well supported by firefighting, air quality monitoring and modeling, and public communications resources, this approach can overcome existing disincentives for achieving ecological and public health goals.”
3) “August 31 … Altogether, medium- and high-density HMS smoke from the Rim Fire on that day covered a large area (251,691 mi2) with a population of 2.8 million people, more than 2 million of whom resided below high-density smoke … In contrast, the Grouse and Harden Fires burned slowly over the early summer of 2009, with very modest emissions until the last week of June … Our analysis of HMS maps indicated that there were only 2 days when medium-density plumes overlaid substantial populations in California and Nevada, amounting to 25,000 person-days”
4) “the Rim Fire burned 55 times more area (257,213 acres) than the combined footprint of the Grouse and Harden Fires (4,695 acres), but our analysis suggests that it had at least 275 times greater impact in terms of persondays, or 5.5 times greater impact relative to area burned.”
5) “Our analyses help to illustrate and begin to quantify many of the potential benefits of resource objective wildfires compared with those of extreme fires:
– 1. Reduced fuels and reduced consumption. … We accounted for this effect within the 10,385 acres of the Rim Fire’s footprint that had experienced prescribed fires or resource objective wildfires since 2002 by changing “typical” fuel loads to “light,” which reduced estimated emissions in those areas by 53%.
– 2. More favorable dispersion and potential for less ozone. As maintenance burns reduce fuel levels over time, managers may be able to burn more safely earlier in the summer and or later in the fall, when dispersion is often more favorable and ozone concentrations are lower (Jaffe et al. 2013). Fires managed for resource objectives are less likely to result in the greater lofting and concentrations of smoke reported from extreme fires, which often deliver pollution to distant, large urban populations in lower-elevation valleys (Colarco et al. 2004, Peterson et al. 2015).
– 3. Greater ability to regulate fire spread. Because wildfires would be managed for resource objectives when weather and fire behavior conditions are more moderate than under extreme wildfires, their slower fire spread can curb daily emissions. In addition, managers can employ the push-pull tactics burn described for the Grouse Fire to regulate daily emissions based on monitored concentrations fire will become increasingly important for reducing the likelihood and extent of large-scale, extreme fires like the Rim Fire (Westerling et al. 2015).”

Fremont-Winema wins sucker lawsuit

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In Oregon Wild v. Cummins, the Oregon district court upheld the Fremont-Winema National Forest’s compliance with the requirement of INFISH to “modify grazing practices … that retard or prevent the attainment of [Riparian Management Objectives (“RMOs”)] or are likely to adversely affect inland fish.”   The court quoted a prior case for INFISH requirements: “INFISH contemplates that its objectives are `targets’ that will not be met instantaneously” and “[t]he attainment of RMOs is to be assessed on a watershed level.”  While plaintiffs identified streams that did not meet RMOs, the Forest had monitoring data that showed overall improvement in stream conditions. While past grazing practices had contributed to degraded conditions, the court held that now, “there is nothing to indicate that grazing is contributing to any failure to attain INFISH RMOs at a watershed level.”

The court dismissed Endangered Species Act claims regarding the impacts of grazing on two listed sucker species because the Forest was obligated to reinitiate consultation on its grazing permits on a 10-year schedule, which was now ongoing and must be completed prior to further grazing. It also dismissed a challenge to an EA used to approve livestock grazing because plaintiffs failed to exhaust their administrative remedies by appealing the decision (which would have stayed any further grazing until the appeal was resolved).   Finally, there was no significant new information that would require supplementing the EA for grazing allotments.