The Smokey Wire : National Forest News and Views
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The question of how much responsibility should fall on the homeowner who choses to live with fire risk came up recently. Here’s Secretary Jewell’s opinion on that:
“We should be holding these people accountable, and we’re not.”
“We each have to take personal responsibility.”
It’s worthwhile to re-read the law every once in awhile. This time, because of some recent discussions here, a couple of things stood out. Here’s the definition of multiple-use:
‘‘Multiple use’’ means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.”
The first italicized phrase indicates that any supposed “commitments” (by Gifford Pinchot or otherwise) prior to this law to any particular uses in particular places have been overwritten by Congressional authorization to change land management to meet current needs (to be determined by a forest planning process). (I guess that also makes the “high level” of sustained yield in that definition something that has to be determined in light of current needs.)
The second refutes the notion that there is any requirement in the law that national forests be managed for “things” that produce dollars (or jobs).
It’s probably also worth reiterating the part of the law that nullifies the “wilderness is not multiple-use” argument: “The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of this Act.”
This article describes the draft revised plans for the Inyo, Sierra and Sequoia national forests (from an ag industry perspective). The way it characterizes the plans’ approach to fire, maybe this approach would make Robin Stanley happy:
The preferred alternative, known as Alternative B, would replace wildland-urban defense and threat zones with a “risk-based wildfire restoration zone and wildfire maintenance zone” to allow for “strategically located fuel reduction treatments along roads, ridgelines and connecting areas with lower fuels to support larger landscape-scale prescribed burning.”
Under the heading “Ecological Integrity,” the preferred alternative calls for improved habitat for endangered and protected species and old-growth forest areas. It also calls for removal of some large and old trees in areas designated as wildfire-protection zones.
This will hopefully lead to some scrutiny of the “best available scientific information” behind the strategy. I find it hard to believe that the local residents could be convinced to give up their “wildland-urban defense and threat zones.” And then there’s the question of whether this science has any relevance to the forests of Idaho or elsewhere.
And then there’s the question of whether this approach is consistent with the natural range of variation for ecological conditions for at-risk species so that it really does improve their habitat. If so, it would be a win for everybody. Except the timber industry doesn’t like it.
But – I commend the Forest Service for treating fire planning as a core element of these plan revisions, and putting this out in public for discussion.
The Francis Marion National Forest was the first out of the gate last fall. It is now joined by the southern Sierra national forests (Inyo, Sequoia and Sierra) and Flathead. The draft plan and EIS for the Sierra forests were released on May 27th for a 90-day public comment period. The Flathead will be officially out on Friday June 3rd for a 120-day comment period (but the documents are on their website now). Experience the 2012 Planning Rule!
This story got me to look closer at planning for fracking on national forests. The reason the BLM can say this in their EA is arguably because a lease does not “authorize surface disturbing activities.” Here’s the way it works.
“The Bureau of Land Management (BLM) proposes to lease up to approximately 40,000 federally-owned minerals located in the Wayne National Forest, Athens Ranger District, Marietta Unit in Monroe, Noble, and Washington Counties in Ohio. This approximate acreage figure represents the total amount of federally-owned minerals that could be nominated and potentially be made available for leasing on the Marietta Unit. Industry uses the BLM Expression of Interest (EOI) process to nominate federal minerals for leasing. To date, industry has submitted over fifty EOIs for parcels located on the Marietta Unit totaling approximately 18,000 acres.”
“The proposed leases would provide the lessee(s) exclusive rights to explore and develop oil and gas reserves on the leases but do not authorize surface disturbing activities. Although there would be no surface disturbance from the action of leasing, the Environmental Assessment (EA) analyzes a reasonably foreseeable development scenario (RFDS) to address the anticipated environmental effects from potential future oil and gas development. Before a lessee or operator conducts any surface disturbing activities related to the development of these leases, the Bureau of Land Management (BLM) must first approve an application for permit to drill (APD) as specified in 43 CFR 3162. In an APD, an applicant proposes to drill the well subject to the terms and conditions of the lease. Upon receipt of an APD, the BLM conducts an onsite inspection with the applicant and the landowner. The Forest Service and BLM would also conduct additional site-specific analysis in compliance with the National Environmental Policy Act (NEPA) and the appropriate consultations under the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) prior to approving the APD.”
So for example, here are the effects of the proposal on “Recreation, Land Use and Noise:” “No direct impacts from leasing. Minor, short- and longterm changes to land use from reasonably foreseeable development activities due to conversion of undeveloped areas to areas that support oil and gas development. Future reasonably foreseeable effects minimized by stipulations and other Forest Service measures for protecting recreation resources. Noise levels would lessen during the production phase.” Another example – effects on air resources would be mitigated by “Standard Operating Procedures (SOPs), best management practices (BMPs) and conditions of approval (COAs) at time of drilling.”
Where I come from, NEPA requires accounting for “reasonably foreseeable effects,” and I think that is what is being described here. And I think they meet the significance criteria in NEPA to require an EIS. I don’t see how BLM can rely on mitigating effects through “stipulations and other Forest Service measures” – unless they are known, in-place mandatory forest plan standards, or if they have been incorporated into the terms of the lease. The EA cites these requirements: “The following notifications and stipulations implement the standards and guidelines of the Wayne National Forest’s 2006 Land and Resource Management Plan (Forest Plan). These are in addition to the standard lease terms for oil and gas leases (BLM Form 3100-11).” All other sources of potential mitigation would have to be considered speculative.
There is another NEPA process at the permitting stage where these effects may be addressed. The EA states, “The lessee is hereby made aware that all post lease operations will be subject to appropriate environmental review and may be limited or denied by no surface occupancy stipulations.” In reality, once a lease is signed, what discretion does the Forest Service have to deny or severely restrict a permit? Maybe someone could refresh my memory on how this has all been sorted out in court.
The Idaho District Court enjoined the Johnson Bar Salvage Project on May 12, finding violations of NEPA and the Wild and Scenic Rivers Act. During the time between the release of the DEIS in March of 2015, and the publication of the FEIS in October of 2015, timber harvesting activities on burned state and private lands had occurred or were underway, and additional wildfires had burned or continued to burn, near the project area.
The court found that the Forest had failed to take a hard look at the effects of these events on sediment and visual quality, and should have prepared a supplemental EIS to address the new information. The main flaw was failing to undertake a quantitative effects analysis of the new sediment sources comparable to what had been done for the original baseline. There were also conflicting statements in the fisheries evaluation, and evidence that road decommissioning would not reduce sediment as claimed. There was no support in the record for conclusory statements in the ROD about a lack of cumulative effects. The urgency of the salvage harvest was not given great weight in the balancing of interests that supported the injunction because the project was scheduled over five years.
This sounds like a case where shortcuts were taken to try to complete a project that was overtaken by events. Haste makes waste.
The Wild and Scenic River holding involved an out-of-date river plan, but may have some implications for vaguely written forest plans (in relation to rivers, diversity or other requirements):
The Forest Service cannot effectively analyze, nor can the public and Court crosscheck, the Forest Service’s analysis, without a River Plan that delineates objective standards, or predetermined criteria, for describing, assessing, and protecting the Wild and Scenic values of the Rivers. Without objective, predetermined criteria, the public is left to trust the Forest Service’s “word” that it considered all relevant factors necessary to protecting the Middle Fork Clearwater and Selway Rivers’ Wild and Scenic values and that the Project will not affect or have minimal impact upon the Wild and Scenic values.”
On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber. The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion. This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.” The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”
I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.” Specific locations of the thinning activities were not identified. With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.
The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply. He should have said that it did, but that the requirements applicable to it were met.
The Eastern California district court upheld the Harris Project on the Shasta-Trinity National Forest on Feb. 26. The project would treat about 2800 acres in northern spotted owl habitat. The Forest Service determined that the project would be “not likely to adversely affect” spotted owls, and the Fish and Wildlife Service concurred. The court found that spotted owls would be able to continue to feed, shelter, or disperse within the 17 acres of treated area in foraging habitat, and therefore the determination and concurrence complied with ESA. It also found that incomplete surveys were the best available science for determining owl presence.
The court also found that the agencies followed the recommendations in the spotted owl recovery plan. The recovery plan encouraged long-term improvements in habitat even if there were some short-term adverse effects, and, “Defendants weighed the short-term impacts against the long-term benefits and concluded that the Harris Project would ultimately help protect and increase northern spotted owl habitat. The court deferred to the agencies’ judgments that this project complied with this strategy. (The highlighted terms suggest that there would in fact be adverse effects that should have required a finding of adverse effects and triggered formal consultation to comply with ESA. Offsetting beneficial effects do not negate this ESA consultation requirement.)
As result the court also held that the project complied with NFMA because it was consistent with the Shasta-Trinity forest plan that required the Forest to, “maintain and/or enhance habitat for” threatened, endangered, and sensitive “species consistent with individual species recovery plans.”
The court also upheld the Forest Service NEPA process. It adequately addressed the effects on spotted owls of promoting ponderosa pine, and properly concluded that other treatments would lead to overall effects that would be beneficial. The court also found that a new report on reducing fire risk (Lydersen) did not contradict information used by the Forest Service, and therefore an SEIS was not needed to address it.
The Utah federal district court upheld the Dixie National Forest decision on the Iron Springs Project (argued at a hearing in July 2014) in Alliance for the Wild Rockies v. Bulletts. The Project involves a range of vegetation management activities including intermediate harvest treatments, salvage of timber killed by or dying as a result of beetle infestation, regeneration of aspen, and reforestation of previously harvested areas. Commercial logging would occur on 3,603 acres of spruce/fir.
Most of the plaintiff’s claims were based on NEPA. The court found that an EIS was not necessary, focusing on the fact that the project affected only 0.5% of the national forest. It found the analysis of effects on old growth species and other at-risk species (including threatened Utah prairie dogs) to be adequate. There were also no unique characteristics of the area, and no controversy about the effects of the project on several wildlife species.
The court was a little creative (or inexperienced) in brushing off potential controversy about using timber harvest to address beetle kill. It concluded that, “Even if the efficacy of timber harvest for the purpose of addressing beetle kill is highly controversial, addressing beetle kill is only one of six stated reasons for the Project.” This suggests that adding non-controversial purposes to a project can somehow offset any other controversy that exists – a dubious NEPA proposition.
Plaintiffs also pointed out that a goshawk amendment to the forest plan had been in place for a decade longer than intended, based only on an EA. However, they did not challenge the forest plan, and the court found that the project was consistent with the forest plan, and that a 2012 scientific review of the amendment validated the best available science for goshawks. The court also upheld viability analysis of management indicator species, which showed that the project area would continue to support sufficient numbers of flickers and three-toed woodpeckers.
The Colorado Department of Transportation and U. S. Fish and Wildlife Service have developed a new process for protecting federally listed species. “When fully implemented, the improvements made through SWIFT will also save CDOT hundreds of hours of report writing and tens of thousands of dollars of consulting fees every year.”
“SWIFT is a programmatic statewide review that assesses impacts to these protected federal species and implements pre-determined standardized conservation measures to avoid or minimize impacts to the species and associated habitat – a great example of using the Lean principle of “standard work”. SWIFT provides these standardized impact assessments and mitigation measures for 92 common CDOT construction activities for all threatened or endangered species in the state as well as candidates for future listings. SWIFT is a tool to expedite project delivery by providing project teams with consistent impact determinations for similar work and predictable conservation measures.” (“Lean” is a management principle that means creating more value for customers using fewer resources.)
The Forest Service has completed similar programmatic consultations on land management activities that may affect listed species. The result is to streamline consultation on projects that fit the pre-determined conditions. However, individual managers can choose not to follow them and incur higher consultation costs. Forest planning should consider the costa and benefits of allowing this discretion, and consider incorporating plan components that promote standardization of conservation measures for projects in the plan area.
The Forest Service has also worked with the consulting agencies to adopt uniform conservation and mitigation measures across the range of certain species in its forest plans (such as for Canada lynx). However, in general, the Forest Service resists the idea of adopting “standard work” principles in its forest plans, preferring to characterize this in derogatory terms as “one size fits all.” It seems to prefer to allow local managers to invent their own wheels, as indicated by proposing changes in range-wide conservation strategies during individual plan revisions, and avoiding the use of mandatory standards that all projects would have to comply with.
Most managers (like those with CDOT) would recognize this as a costly and inefficient process. What does it buy? Comparing the costs and benefits of Forest Service decentralized decision-making would be a good exercise for the GAO on behalf of federal taxpayers.