New to national forests – carbon sequestration

The world’s largest carbon direct air capture facility has started construction in Iceland

From the news release:

The U.S. Department of Agriculture’s Forest Service today announced a Notice of Proposed Rulemaking (NPRM) that would allow the agency to consider proposals for potential carbon capture and sequestration projects on national forests and grasslands. This proposal would harmonize the framework between the federal government’s two largest land managers by aligning with regulatory structures already established for the U.S. Department of Interior’s Bureau of Land Management.

If this amendment is finalized, applications for carbon sequestration on national forests or grasslands would be considered for permanent use. The proposed regulation changes the initial screening criteria to allow the Forest Service to consider proposals for carbon capture and sequestration projects and does not allow for any other permanent uses on national forests and grasslands.

From the Federal Register:

The United States Department of Agriculture, Forest Service (Forest Service or Agency), is proposing to amend its special use regulations, which prohibit authorizing exclusive and perpetual use and occupancy of National Forest System lands, to provide an exemption for carbon capture and storage.

Carbon dioxide injected in pore spaces may remain for over 1,000 years after injection and would be tantamount to an exclusive and perpetual use and occupancy if authorized on NFS lands.

The proposed rule would not authorize carbon capture and storage on NFS lands. Rather, the proposed rule would exempt proposals for carbon capture and storage from the initial screening criterion prohibiting authorization of exclusive use and occupancy of NFS lands, thereby allowing the Forest Service to review proposals and applications for carbon capture and storage and to authorize proposed carbon capture and storage on NFS lands if, where, and as deemed appropriate by the Agency.

Proposals for underground storage of carbon dioxide would have to meet all other screening criteria, including but not limited to consistency with the applicable land management plan, potential risks to public health or safety, conflicts or interference with authorized uses of NFS lands or use of adjacent non-NFS lands.

Of course it would have to be consistent with forest plans, but would a forest plan that authorizes “exclusive and perpetual use and occupancy” of national forest lands be consistent with the Multiple-Use Sustained-Yield Act?  (Is the BLM different in this regard?)  I assume that’s why the existing special use regulations are written to prohibit permanent uses.  Maybe this should be viewed as a question of divesting ownership rather than a permitted special use.


Budd Falen: Standing Up for Rural Constituents


Karen Budd Falen was the Deputy Solicitor for Parks and Wildlife in the Department of Interior for three years, and she left with the rest of the Trump administration, capping off a notable career in opposing public lands.  She appears to come by that view honestly, being raised on a Wyoming ranch and representing ranchers as an attorney (including the Bundys).  She reflects in this short piece on her legacy of changing the Endangered Species Act regulations and National Environmental a Policy Act regulations to promote more “local control” (as well as with the Land and Water Conservation Fund).

I take issue with her arguments in both cases that the laws the regulations implement (ESA and NEPA) were intended to allow social and economic considerations to play the role she has provided for them.  These statutes are both clearly aimed at the “natural environment,” and not local “custom and culture.”  Remarkably, she appears to admit that, “the listing of a species should be based only on science,” but then she has made it harder to do that with various changes in the ESA implementing regulations (which go beyond those she describes here in relation to critical habitat).

My fundamental disagreement with her and those she represents concerns this statement (and I suspect it may be a reason for differing opinions on this blog):

In my view, local elected officials should have more sway on issues directly affecting them than someone from midtown New York who has never faced the realities of making a living from the land.

The major gloss-over here is that endangered wildlife and federal lands don’t belong more to local people and their elected officials.  Her view that local interests should have more influence is not supported by either of these laws, and it is not the view held by most of the people that these resources do belong to.  Should the Biden administration not reverse these regulations, courts will have another opportunity to slap down the misinformation from her, and organizations she has worked for like the Mountain States Legal Foundation, that has led to ideas like “county supremacy” limiting how national forests are managed.

(Here is a little background from just before Trump decided she could not get confirmed as BLM Director.)

Trump makes life more dangerous for public land managers

A GAO Report released Monday documents incidents where employees of the Forest Service, BLM, Fish and Wildlife Service and National Park Service were threatened or assaulted.  The security review was requested by the Democratic chairman of the U.S House Natural Resources Committee, Rep. Raul Grijalva, and there is a hearing today before a House subcommittee.  According to Snopes (so it must be true):

Grijalva said the findings underscore growing concerns over the safety of government workers on public land.  The Arizona lawmaker also criticized the Trump administration’s appointment of Bureau of Land Management Acting Director William “Perry” Pendley, who has expressed support for Nevada rancher Cliven Bundy. Bundy’s family played central roles in a 2014 standoff over grazing fees in Nevada and the 2016 occupation of Oregon’s Malheur National Wildlife Refuge.  “Making a folk hero out of Bundy, that sets a dangerous precedent,” Grijalva said. “At the top of the agency, they reinforce and embolden some of these actions by doing nothing and previously being in support of them.”

Professor John Freemuth, an expert on U.S. land policies at Boise State University, said it was true that the Trump administration’s pro-development policies could help quiet resentments toward the government. But Freemuth added that anti-government rhetoric also gets legitimized when it’s espoused by prominent figures.

Also, as the Washington Post points out:

President Trump demonstrated his position last year on those anti-government ideologues who violate federal facilities, and it is not a comforting one for federal employees.  He pardoned two men whose convictions on public-land arson charges helped ignite the six-week Malheur National Wildlife Refuge occupation in Oregon in 2016. He absolved Dwight Hammond Jr. and Steven Hammond, father-and-son cattle ranchers in southeastern Oregon whose convictions carried mandatory five-year sentences.

In a formal response to the GAO report, Interior Department Assistant Secretary Scott Cameron agreed with recommendations to carry out security assessments at hundreds of government facilities. In a separate response, Forest Service Chief Victoria Christiansen also agreed with the recommendation for security review.  Neither response gave details on when the security work would occur.

It’s a tough time to work for the “deep state.”

Utah vs. Nevada

In a discussion of “privatization,” Brian Hawthorne suggested here that, “It might be worthwhile discussing our perceived distinctions between what Utah’s HB 148 contemplates vs the “small tract sales” made pursuant to the SNPLMA.” That would require some knowledge of what both of these things are.

This summary of Utah’s H.B. 148 is from a review by an attorney from the conservative Federalist Society.

Recent legislation passed in the State of Utah has demanded that the federal government extinguish title to certain public lands that the federal government currently holds. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State.

On March 23, 2012, Governor Gary Herbert of the State of Utah signed into Utah law the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to House Bill 148 (“H.B. 148”). This legislation demands that the federal government “extinguish” its title to an estimated more than 20 million (or by some reports even more than 30 million ) acres of federal public lands in the State of Utah by December 31, 2014. It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer.

This is from the Southern Utah Wilderness Association, described by another poster here as “unwilling … to compromise with any other interest group.”

HB 148 requires, among other things, the federal government to transfer title of federal public lands in Utah to the state before January 1, 2015.  These public lands include lands managed by the Bureau of Land Management, Forest Service, U.S. Fish and Wildlife Service, and National Park Service.

  • They include, among others, sensitive sites such as Grand Staircase-Escalante National Monument, Glen Canyon National Recreation Area, and all national wildlife refuges in the state.
  • This would also include the overwhelming majority of remarkable red rock lands surrounding Moab, the San Rafael Swell, and Grand Gulch.
  • The Legislature has indicated that some of these lands would be sold outright to the highest bidder while others would be kept in state ownership but opened to oil and gas drilling, off-road vehicle use and extractive industries.
  • The bill does not require the transfer of national parks, wilderness areas, or certain national monuments and national historic sites.

Here is a summary of the Southern Nevada Public Land Management Act (from this OIG Report).

Las Vegas, one of the fastest growing cities in the United States, is landlocked by federal lands. Over the past decade, the population has increased by more than 60,000 people per year. To accommodate this rapid growth and expedite the disposal of federal land, Congress enacted SNPLMA in 1998 (Public Law 105-263, 31 USC 6901). SNPLMA allows BLM to sell federal land (about 27,000 acres) primarily through public auctions, establish a special U.S. Treasury interest-bearing account, and use the resulting receipts for educational and environmental purposes and capital improvements. In addition, SNPLMA directed BLM to transfer ownership of about 5,200 acres of land in the McCarran Airport Cooperative Management Area (CMA) to Clark County to help the County enforce regulations concerning airport noise within the CMA. BLM is entitled to 85 percent of any receipts from the sale, lease, or other conveyance of CMA lands.

I’m afraid I don’t see much similarity. The justifications are at opposite ends of the scale from a localized problem to a disagreement about overall management policies. The difference in the affected area is huge.  There are benefits returning to the American public from the Las Vegas land sale proceeds.  Perhaps it’s a slippery slope (next Los Angeles, Salt Lake City, Missoula …?), but H.B. 148 represents the bottom of that slope.

The Different Kinds of “Privatizing” Public (Federal) Lands and CBD’s Most Wanted List

From Center for Biological Diversity “Public Lands Enemies”

Matthew and I have been having an interesting discussion here about privatizing public lands and the role of various political actors, which I thought I would move to a separate post. It all started as “what’s with Wyoming and Utah ” and originally started with a comment by Jon. I appreciate Matthew’s look at history and I bet there are historic reasons that Utah is the way it is, just like any other state.

First I would like to separate the idea of privatization as any private entity leasing federal land- here is an example in the Summit Daily News by a writer named Jonathan Thompson, a contributing editor to the High Country News.

Zinke has repeatedly expressed his opposition to wholesale federal land transfers, but his enthusiasm for leasing adds up to the same thing. The interior secretary is running a de facto privatization scheme.

(my bold) It may seem ironic that the Summit Daily News ran this, given that the largest economic engines in Summit County are ski areas located on leased Forest Service land. Oh well. I think it is intentional, and not very accurate, to conflate selling federal land to “letting people do things on federal land and getting money for it.”

If we talk about “real” privatization, there have been various efforts by Congressfolk to that have been characterized by some as privatization. Not having looked into those bills I don’t know the details.

I don’t pay a lot of attention because there isn’t enough support to do it, so it is just political theater. (I’d be interested in posts as to what the bills contain .. I could be wrong).

It turns out that our friends at the Center for Biological Diversity actually have a most wanted list of Congressfolk. Here’s their 2017 report. Of course it goes without saying that I don’t agree with them. My point is that many western states are represented -even in the CBD version of who are the “bad guys.” If you look at the second list, you’ll even see easterners.

For this report we identify the top 15 members of Congress who have emerged as enemies of public lands.
These federal lawmakers were selected because they:
• Authored and/or cosponsored the largest number of “anti-public lands” bills between 2011 and 2016;
• Put the narrow interests of extractive industries ahead of native wildlife, habitat protection, clean water, clean air and opposing rules or laws that limit the ability of extractive interests to dictate and dominate use of public lands.

The 15 Public Lands Enemies in rank order are:
1. Sen. Mike Lee (R-Utah)
2. Rep. Rob Bishop (R-Utah, 1st District)
3. Sen. Orrin Hatch (R-Utah)
4. Rep. Paul Gosar (R-Ariz., 4th District)
5. Sen. John Barrasso (R-Wyo.)
6. Rep. Chris Stewart (R-Utah, 2nd District)
7. Rep. Don Young (R-Alaska, At Large)
8. Sen. Jeff Flake (R-Ariz.)
9. Rep. Raúl Labrador (R-Idaho, 1st District)
10. Rep. Jason Chaffetz (R-Utah, 3rd District)
11. Rep. Mark Amodei (R-Nev., 2nd District)
12. Sen. Lisa Murkowski (R-Alaska)
13. Rep. Steve Pearce (R-N.M., 2nd District)
14. Rep. Tom McClintock (R-Calif., 4th District)
15. Sen. Dean Heller (R-Nev.)

The ultimate goal of these Public Lands Enemies is to wrest control of these lands out of public hands and give it to corporate polluters and extractive industries, robbing future generations of wild places. With the West losing to development one football field’s worth of natural areas every two and a half minutes — an area larger than Los Angeles each year — these shared lands are more important than ever. Other legislators should be intensely wary of embracing the extreme views of these Public Lands Enemies.

CBD treads a very delicate line of getting people charged up and knowing at the same time that the dog of “real privatization” or even “state transfer” won’t hunt- and quote the polls in the same paper that indicate it. Oh well, and here are their second order enemies:

• Sen. Michael Crapo (R-Idaho)
• Sen. Ted Cruz (R-Texas)
• Sen. Steve Daines (R-Mont.)
• Sen. Michael Enzi (R-Wyo.)
• Sen. John McCain (R-Ariz.)
• Sen. Jim Risch (R-Idaho)
• Rep. Diane Black (R-Tenn.)
• Rep. Paul Cook (R-Calif.)
• Rep. Jeff Duncan (R-S.C.)
• Rep. Trent Franks (R-Ariz.)
• Rep. Walter Jones (R-N.C.)
• Rep. Doug LaMalfa (R-Calif.)
• Rep. Kevin McCarthy (R-Calif.)
• Rep. Cathy McMorris Rogers (R-Wash.)
• Rep. Ted Poe (R-Texas)
• Rep. Scott Tipton (R-Colo.)
• Rep. Greg Walden (R-Ore.)
• Rep. Bruce Westerman (R-Ark.)

Back to my Wyoming point.. Congressfolk there barely show up, perhaps because there are so few Representatives.

I hear the word “extractive” quite a bit. It seems to imply that people who take things away (oil and gas, coal, woody material) are bad, and people who leave things on federal land (ski lifts, trails, dog and people leavings, microwave towers, pipelines, pitons) are good for the environment. I don’t think it’s that simple. Non-traditional forest products? Grazing takes some grass and leaves some deposits.. and so on.

State “primacy” for NEPA documents

Second maybe to only Utah for creative ways to privatize federal lands, the State of Wyoming has come up with another scheme. This article reports on “a conversation between Gov. Mark Gordon and Secretary of the Interior David Bernhardt about how Wyoming could assume a role that’s now the purview of federal agencies.”

“The notion here would be could the state have more of a primary role in establishing the beginning steps of [the] NEPA [process],” Gordon told WyoFile in late March. “In other words, could the state organize the NEPA effort and kind of walk through it and deliver [results]” to a federal agency.

Following Gordon’s lead, the Wyoming Legislature expects to study over the next nine months “state primacy and oversight of environmental assessments and environmental impact statements …”

“The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.

The states are already given a front row seat in federal NEPA processes, and the federal government can contract for NEPA services; it is the apparently new concept of “primacy” that is going to run into legal problems. It’s not clear from the examples provided whether the issue is decision-making authority, or to get “more of this work done in a timely manner.” If it’s the latter, I’m sure the feds would be happy to have state volunteers or state dollars (but isn’t this the focus of the “Good Neighbor” program?), though increased legal scrutiny of potentially biased NEPA products should be expected. If “primacy” means “the final word” on anything in a NEPA product they should probably spend their committee time elsewhere (like Congress).



The myth of “coordination”

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.”

Idaho county votes down wilderness


Voters rejected the proposal for the Scotchman Peaks Wilderness, 5,672 to 4,831.  As a result, Senator Risch will not reintroduce his legislation to designate the area, and wilderness legislation has no chance of passing without local Congressional support.  So to a limited degree we have local control of a national forest, but as the article points out, management under the forest plan, which recommends the area as wilderness, won’t change.  (The article suggests that Congress couldn’t change the forest plan; of course it could, but I don’t think there is a precedent for it.)

The unfortunate thing is that the voters seem to have been misinformed (which is something I would hope a congressman would take into account).

“The philosophy with wilderness areas is let it burn,” said Bonner County Commissioner Dan McDonald.

And, perhaps most importantly, (Forest Service spokesperson) Cooper said Forest Service personnel can and do manage forest fires in both recommended and designated wilderness areas. “We still do manage wildfire,” she said.  In 2017, the Forest Service sent smokejumpers into the Salmo-Priest Wilderness area to fight a forest fire.

My own interpretation is that suppression response depends on the values at risk, and wilderness area values, aren’t lost when they burn (in fact probably the opposite) – like other areas managed primarily for conservation or recreation, which is how this area is being managed now. 

Federal lands, “Utah-style”

Three Republicans running for election this year discussed weakening the Antiquities Act and Endangered Species Act, dropping the filibuster rule in the U.S. Senate and rewriting federal public lands policy to require state approval of new regulations.

“It’s not that lawmakers in the East — and for me that’s everything east of Denver — it’s not that they’re evil, they’re just stupid,” he (Bishop) said, drawing chuckles from some in the audience. “When we talk about public lands to Easterners, they just don’t have the same concept. They think everything is Yellowstone.”

I would say they might think everything “should be” Yellowstone, and who’s to say they are wrong.  It’s their land too.  Maybe Bishop is the one who is stupid.

“”It’s going to take an educational effort, not just a political effort” to push back against what he called radical environmental groups, he (Romney) added, referencing decisions such as Trump’s national monuments order, which has been challenged in court by Native American groups, environmental groups and others.  “There are some in the environmental lawsuit industry that may not care very much about the underlying facts,” he (Romney) said. “They’re just going to file lawsuit after lawsuit after lawsuit because that’s how they get paid.”

The underlying facts are what the lawsuits are based on.  And apparently “radical” means “willing to go to court.”

Maybe they should just sell this national forest land?

Steve Sanders addressed the board on the issue of the landfill nearing capacity. Sanders stated the landfill is expected to meet capacity sometime in the summer 2018. The plan for expansion has been on the books for a number of years. The expansion will cap in 5-7 years and then will require Gila County to have a new site to continue to collect municipal solid waste to dispose of for the northern part of the county. They have already started discussions with the Forest Service to acquire land around the Buckhead Mesa Landfill as it’s on a special use permit from the Tonto National Forest.

When someone argues that the Forest Service isn’t complying with the Multiple-Use Sustained Yield Act because a particular use excludes others, show them this example.  I suppose you could camp here … or how about a shooting range?