Planning

Forest plans may prevent listings under ESA

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Succinctly put by WildEarth Guardians:  “If the plans fall short of halting population declines and habitat destruction, then clearly the Endangered Species Act will be needed.”

This story is about sage grouse, but the principle applies whenever public land management is an important contributor to an at risk species’ habitat.  That’s because one of the five factors that must be considered in listing a species is “the inadequacy of existing regulatory mechanisms.”  Thus far courts have recognized only mandatory forest plan standards as being sufficiently regulatory in nature to address this ESA factor for federal lands.

The absence of such regulatory mechanisms in forest plans was a key factor in listing the Canada lynx, for example.   The addition of regulatory standards to forest plans is viewed as being necessary to de-list grizzly bears.  So what to make of the idea of reducing regulatory mechanisms in the Northwest Forest Plan?

Also what to make of state objections to plan amendments for sage grouse?  It’s politically more difficult to get adequate regulatory mechanisms in place for private land, so I would think the states would be asking the feds to do whatever it takes to avoid listing.  Here’s another concise summary from a more objective source:  “A “not warranted” decision by the Service is possible — but they have made clear that it will only be possible if states, federal agencies, and private landowners put strong conservation measures in place.  (Neil Kornze, director of the Bureau of Land Management.)

Should federal lands bear the brunt of ESA conservation obligations?

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Sage grouse are putting that question out there.  BLM and the Forest Service are amending plans to adopt strategies for federal lands that are more ‘strict’ than what states would do.  States don’t like this; do you?

A related question – how important is it to have a consistent conservation strategy across jurisdictions?

I am disappointed by the many proposed differences between BLM’s Montana’s RMPs and the Montana Sage Grouse Habitat Conservation Program,” Bullock wrote in a 12-page letter to Jamie Connell, the BLM director for the state. “The difference between the Wyoming and Montana state plans and the Montana RMPs reflect inconsistencies that simply do not make sense when serving for a consistent approach to sage grouse conservation across significant and interconnected working landscapes.” 

Some better things coming from the Blues (Mtns.)

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Since I criticized the FS there in a couple of previous posts, here’s a couple of things I think they’ve done right.

It’s important that the public understand the relationship between forest planning and travel management planning, and this explanation from the Wallowa-Whitman is reasonably clear.  I think it should work about as well as it can if the Subpart A (roads analysis) precedes forest plan revision, and Subpart B (designation of roads open to motorized vehicles) follows it.

A little further back, I faulted the FS for not being honest about the legality of the local ordinance that sought to regulate the federal government.  That came up again at this Malheur meeting, and the FS set the record straight: “Our attorneys do not believe the Grant County ordinance is legal,” Beverlin said.

Court takes an interest in habitat connectivity – so should the Forest Service

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Connectivity is a new buzzword in the 2012 Planning Rule. It is part of the requirement for ecological integrity, but the Forest Service seems reluctant to fully embrace it in its early revision efforts under the new rule.

On June 25th, the Arizona District Court invalidated a Forest Service grazing permit on the Coconino National Forest because the U. S. Fish and Wildlife Service failed to consider effects on habitat connectivity in areas designated as critical habitat for the Chiricahua leopard frog. The judge held (in Center for Biological Diversity v. Branton):

Viable dispersal corridors are needed to ensure that the Buckskin Hills can sustain a functioning metapopulation: without them, CLFs would be unable to spread from one stock tank to another, and would be unable to recolonize a stock tank should its local population die out (record citations omitted). Accordingly, adverse modification of the dispersal corridors would “appreciably diminish the value” of (the critical habitat unit). In short, the 2013 BiOp’s failure to account for the maleffects of livestock grazing in dispersal corridors renders its conclusion that the Proposed Action “should not significantly reduce or modify” PCE 2b (record citation omitted) arbitrary and capricious.

This was a project decision involving a listed species and critical habitat. However, the principles of metapopulation dynamics it recognizes should be equally applicable to NFMA requirements that forest plan components provide ecological conditions necessary for viable populations.   This opinion suggests that, where connectivity is necessary for an at-risk species, and where information about the connectivity value of specific areas is available, their locations should be identified in the planning process and probably given special protection by plan components.

In this case, a requirement in the forest plan to apply specific conservation measures to dispersal corridors might have saved this project. Moreover, fixing this project would not prevent the same thing from happening on other projects. This suggests that the Forest Service should amend the plan (which would be subject to the 2012 Planning Rule requirements for viability), or at least reinitiate consultation on the forest plan on critical habitat for this species (based on new information about effects – but wait – this is the 10th Circuit, where that is not required.) What should the Forest Service do?

FYI – Here’s what Defenders of Wildlife thinks the Forest Service should do about connectivity in its forest plans.  (I suppose I should explain that I did the work on this document on a contract, and that I contribute to this blog on my own time, so that I am not intending to represent the views of Defenders of Wildlife here.)

Beaverhead-Deerlodge Forest Plan NEPA not site-specific enough

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The Ninth Circuit Court of Appeals reversed the decision in the Beaverhead-Deerlodge (B-D) National Forest’s revised forest plan to designate areas for use by winter motorized vehicles. It found that the forest plan EIS failed to provide analysis that was site-specific enough to make an informed decision, as required by NEPA, and that the planning process did not comply with the “minimization” requirements of Executive Order 11644 for off-road vehicles, including evaluation of specific areas open to motorized vehicles.

This was a rare loss at the forest plan level on a NEPA issue.  While courts often accept more general NEPA analysis for programmatic decisions, this court recognized that the essence of forest plans is land allocation decisions.  Here it was important to know where winter range was in order to consider how the plan affected it or to propose alternatives for it.  The court stated that, “Without data on the location of the big game winter range, the public was severely limited in its ability to participate in the decision-making process.”  This principle should be applicable to other wildlife issues in plan revisions.

The holding on motorized use may also be precedent-setting.  It found that the plan ‘designated’ ‘areas open to snowmobile use.’  That made it subject to the executive order and to the Travel Management Rule (TMR) the FS adopted to implement the executive order.  The court stated, “What is required is that the Forest Service document how it evaluated and applied the data on an area by-area basis with the objective of minimizing impacts as specified in the TMR.”  It held that the Forest Service had instead deferred that level of analysis to subsequent travel planning.  The B-D plan had more site-specific direction for motorized use than many plans would have, but this holding could arguably apply to any forest plan components that identify areas in which motorized use would be allowed (especially where it is already occurring without prior compliance with the TMR).  This opinion blurs the distinction between forest planning and travel planning that the Forest Service has tried to maintain.

Sage grouse plans are out

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Here are national and state perspectives.

 

The proposals to amend federal BLM and Forest Service plans to protect sage grouse have been released. I haven’t read the new plan components but I have followed the process since I was peripherally involved before I retired from the FS, and I was also more heavily involved in developing similar strategies for bull trout, lynx and grizzly bears. This is the way conservation planning on federal lands should be done – but BEFORE it gets to the point of possible listing and this kind of crisis management.

 

It would be nice to see this happening now in the forest plan revision process for species of conservation concern (for which a regional forester has found “substantial concern about a species’ capability to persist over the long-term in the plan area”). Instead of consistent conservation strategies being developed (based on ecosystem and/or species-specific plan components) we see species like wolverine, which recently barely (and maybe temporarily) dodged listing, not even being identified as a species of conservation concern in the Idaho and Montana plans that are being revised.   There doesn’t seem to be a learning process here.

 

But the states are worse. They’ve had jurisdiction over sage grouse for the last century or two, and we’ve seen what results. It’s pretty laughable for them to now say the feds should follow state plans for sage grouse.

 

This is just flat out wrong,” Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, said of the plan. “If the Administration really cares about the bird they will adopt the state plans as they originally said they would. The state plans work. This proposal is only about controlling land, not saving the bird.”

 

Are the states trying to save the bird, or do they just see this as another opportunity to exert their control on federal lands?

 

Advice for the Tongass young-growth plan amendment

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Though some doubted it could be done, the group of industry leaders, scientists, conservationists and government representatives has reached a consensus: the Tongass Advisory Committee has submitted its draft recommendations for managing timber harvests in the national forest that covers much of Southeast Alaska.

There are lots of interesting ideas here; maybe some becoming relevant beyond Alaska as the Forest Service gets out of the old-growth business everywhere.  Here’s one that surprised me:

It asks for changes in leadership, with more power given to regional foresters.  “This runs counter to the current culture in which District Rangers, in order to be safe and not take any risk, simply layer on Interdisciplinary Team suggestions for protection, without paying attention to redundancies,” the draft reads, “lead(ing) to a collision of restrictions that result in low volume and non-economic projects … or extinguishes projects altogether.”

It’s also counter the culture of decentralization.  It seems to be a proposal to take more risks, which I would expect to lead to more litigation.  On the other hand, I got the impression over the years that those at higher levels understood the risks better and were less likely to take them.  But then they are closer to the politicians, too.  (Maybe there’s some other perceptions out there.)

Forest plan stops ski area

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It seems to be a little-known benefit of forest plans, but they can be used to support decisions to turn down requests for special use permits.  The high profile case of a proposed Lolo Peak ski resort near Missoula made it to district court, where Judge Molloy upheld the Forest Service decision to reject the proponent plaintiffs’ request.  The process for initial screening of a proposal requires a finding that it would be consistent with the forest plan.  In this case, the court reviewed the forest plan direction for the area proposed for development and found that the Forest Service was not arbitrary in finding that a ski area would not meet the goals and standards of the various management areas.  It didn’t help that the developer had already built ski runs on the private land, and photographs of them were used to demonstrate how the ski area would not meet visual quality requirements in the forest plan.   (This is what I see across the valley every time I drive into town.)