Roadless

The Facts About Rescinding Rules and Some Other Roadless Ruminations

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The Secretary announced that she is rescinding the 2001 Roadless Rule.  However, what I forgot to mention before is that Admins can’t willy-nilly get rid of regulations.  If that were the case, the USG would be even more of a cluster than it is.  Fortunately, George Washington University has a Regulatory Studies Center, which explains all the processes that can be used.. and previously I had skipped ahead to the pain of doing a new rule, without explaining that they need to do one.

To modify or overturn a regulation that does not fit any of the above circumstances, an agency would have to go through all the procedures required to issue a new regulation. These steps are governed by the Administrative Procedure Act of 1946 and include developing a legal record justifying the proposed change (including technical and economic analysis), and seeking public comment on that record and the proposed regulatory (deregulatory) action. The agency would have to respond to public comment, which may lead to modifications to the draft regulation, before it issues a final rule. These steps generally take at least a year, but the story won’t likely end there.

When the final rule is issued, two records will exist, one developed to support the original regulation and a second that supports its elimination or modification. The revised rule will almost certainly be litigated, with parties that supported the original rule pointing to the earlier record to defend their objections. This legal process may take years to resolve.

I can see why the media uses the expression “rescinds Rule”, at least in the headlines, because the Admin did.. but we can imagine a new Rule.  It’s somewhat predictable.  It will be a massive donation generating device for ENGOs,  97% of public comments will be against it no matter what’s in it. In fact, the ENGOs can probably reuse press releases from previous State rulemakings.  By the time it’s done, it will either go to court and be overturned, or there will be a new Admin who will redecide and select the no-action (keep the 2001) alternative.  As I recall, that’s what happened in Alaska.

My idea since so much of this is repetitive and would benefit from knowledge gained from previous efforts, that this Admin call back retirees and find the folks who worked on Alaska, so hopefully no one else will have to spend their time learning about this fairly arcane topic.

Now the argument could be made that the 2001 Rule didn’t take climate change into account and therefore the increased risk of catastrophic wildfire- climate-induced megafires..requires attention to different issues in the analysis.. and it would indeed be interesting to see this Admin make that argument.

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For those of you who don’t remember, the Bush era State Roadless effort was for States with Roadless Problem Children to step up to the plate and do a state-specific rule. Only Colorado, Idaho and Alaska (longer story) ever stepped up.  I infer from that that no one else (even the much- maligned Utah) really cared. Of course, as I can attest from experience, doing a Rule is a great deal of work and I suppose getting someone else to do it (like the Feds) doesn’t carry the same burden. Nevertheless..

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The media coverage has been interesting.. once again the LA Times continues its deference to Chad Hanson as a mouthpiece for “many of the scientists”. Their virtual rolodex of California fire scientists must be sparse. What’s up with that?

Experts say decades of suppressing fires in California has enabled a buildup of vegetation that is fueling larger and more frequent conflagrations. However, many of those same experts have warned that clearing brush is not the same as large-scale logging or clear cutting — which can eliminate fire-suppressing shade and moisture and lead to new growth of more combustible non-native plants and grasses.

So I guess the reporter assumes that the FS will embark upon “large-scale logging and clearcutting” as part of fuel treatment projects.. regardless of forest plans, and other restrictions. Looking on the bright side, perhaps they’ve moved from “fuel treatments don’t work” to “they might work, but the FS won’t do them properly.”

I agree with Chris Wood here:

Chris Wood, who helped develop the 2001 Roadless Rule when he worked at the Forest Service and now serves as chief executive of the conservation group Trout Unlimited, said the policy is “one of the most significant and popular conservation achievements in the history of the United States.”

“Gifford Pinchot, the first chief of the Forest Service, once described conservation as ‘the application of common sense to common problems for the common good,’” Wood said. “Let’s hope common sense prevails and the administration reconsiders its proposal.”

At the same time, I recall that Chris has also been quoted as saying “the 2001 Rule was not written on stone tablets.” Both things are true, it is popular and a general good thing.. and it, like anything else, could probably be improved by better mapping, consideration of PODs, and climate change.

And so it goes.  I just hope the Admin minimizes the impact of this rulemaking on the current workforce.

Trump Admin is Planning to Try to Rescind Roadless Rule: Deja Vu All Over Again

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Sigh. Here we go again.  We could have a contest for most over-the-top statement on an email.. and I think the Western Environmental Law Center would win hands down.  I didn’t even know that WELC was all that metaphysical.

Trump to unleash Hell on crown jewels of undisturbed public lands by rescinding Roadless Rule

Sorry, as a certified Roadless Geek and veteran of Colorado Roadless, I think this effort follows the Generational Law of Bureaucracy.. which is:

Wait until everyone’s retired who knows about how to do something (preferably over five years)… and then start the same process all over again.

This seems like a mostly symbolic waste of government time to me.. kind of like the Trump Admin equivalent of the MOG work.

Here’s the announcement, it’s pretty straightforward.

Here is there argument for why it is needed.. to help with wildfire.

Here’s what I’d do instead.. 1. stop doing plan revisions. 2. Get plan amendments done with prescribed fire, managed fire, PODs and evacuation routes.  If it turns out that a critical area is in a Roadless Area,  the problem is not cutting trees (we went through this in Colorado, the argument was that you could do fuel reduction treatments because.. (this was the ENGO argument for not needing tweaks to the 2001 Rule)

Fuel treatments other than PF (not restricted in RR) would be infrequent, remove “generally” small diameter material and might fit the “uncharacteristic.. range of variability” verbiage.  Here’s the exact wording:

(b) Notwithstanding the prohibition in paragraph (a) of this section, timber may be cut, sold, or removed in inventoried roadless areas if the Responsible Official determines that one of the following circumstances exists. The cutting, sale, or removal of timber in these areas is expected to be infrequent.

(1) The cutting, sale, or removal of generally small diameter timber is needed for one of the following purposes and will maintain or improve one or more of the roadless area characteristics as defined in § 294.11.

(i) To improve threatened, endangered, proposed, or sensitive species habitat; or

(ii) To maintain or restore the characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period;

So if you follow that (and I don’t know if there’s case law in which a fuels treatment project didn’t meet the criteria), the only problem is temp roads.  And sometimes that can be a problem, because there are (some, few?) places that material may need to be removed for fuels reasons and can’t be burned onsite because of the forest conditions.  We also ran into problems with powerlines and dams in roadless areas. Powerlines obviously need maintenance, and equipment was allowed to get to dams based on “imminent” threat.. how immanent is “immanent.”

The point of what we did in Colorado was to locate the specific 2001 Problem Children and deal with them.  As part of deal-making, acres that had roadless characteristics but had not been included in the original mapping (low-tech compared to now) were added.  If I were in the Admin, I’d ask the Governors (except for Alaska, Idaho and Colorado) to identify any Problem Children and work changes to the reg from those.  This has the added advantage of dealing with real world issues so that it doesn’t end up being just another sucker of employee time with the result ending up in a courtroom, being decided by someone who decided if the right words are on paper.  This is not to diss my legal friends, but I think there is a better way.

In my meanderings, I  wondered:

Why is Colorado Roadless Rule litigation not on the FS webpage? 

Nor apparently the actual rule itself, but you can find it here.

Finally, just a note to folks unfamiliar with the 2001 Rule.. there are roads in roadless areas (original mapping issues) and there are pre-existing rights, and there is grazing and recreation (in fact part of a ski area was in a Roadless Area), so it’s not accurate to equate Roadless with “pristine” or “undisturbed.” There are powerlines and pipelines and OHV trails…

More on the Nez Perce-Clearwater-Lolo revision (and the Great Burn)

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Here’s a little more (added to this) on the Nez Perce-Clearwater revised forest plan.  Mostly I wanted to share this graphic of how they are “reaching out” to the public.  They ask an important question:  “What can you do?”  The obvious meaning seems to be what can you do about the forest plan, and the answer for most people is “nothing.”  They say that the plan is in the objection period, but don’t tell us that the only people who can participate are those who have already done so.  They invite us to “learn more,” about this nearly-done deal, which they misleading label as a “draft Forest Management Plan.”  (At the draft EIS stage, the Planning Rule refers to it as the “proposed plan,” and at the objection stage it is just the “plan.)   While they have must have included similar outreach at earlier stages in the process, for those encountering this for the first time, it’s almost disingenuous.

But while I’m at it , there was also another article recently that focused on the State Line Trail, which runs through the Hoodoo Recommended Wilderness Area in the Great Burn between Idaho and Montana.  (I’ve been there but haven’t been directly involved in the planning, so know only what I read.)

“It used to be a marquee backcountry ride for mountain bikers, too. That ended in 2012 when the Nez Perce-Clearwater National Forest, which controls the Idaho side of the trail, approved a new travel management plan that barred bicycles from its portion of the trail. On the Montana side, the Lolo National Forest has long allowed bicycles on the trail.”

A new revised forest plan for the Nez Perce-Clearwater could change that, by determining that bicycles are an appropriate use in the portions of Idaho around the trail, which would mirror access on the Montana side. If the changes in the plan are finalized, possibly later this year, that would set the stage for the Nez Perce-Clearwater to revisit and alter its 2012 travel plan to formally re-allow bicycles on the trail.”

The rationale behind these changes, according to the forest supervisor, don’t seem to include consistency (more on that later):  “We have these types of very primitive, amazing, out in the middle of nowhere experiences that you can get to no matter what your matter of conveyance is.”  No apparent agency recognition that the conveyance is part of the experience for those who encounter it, and for some it makes it feel unpleasantly more like “somewhere.”

One of the supporters added, “It’s a small segment of the sport that this is going to appeal to,” he said. “It’s not that close to Missoula. It’s hard. The trail’s in deteriorating condition. But this opportunity is, for certain people, something they really, really want.” That small segment of certain people (who apparently want to deteriorate the trail even more) must be pretty special to get this kind of personalized attention.

“Some mountain bikers are drawn to remote, rugged, and challenging backcountry trail experiences on wild and raw landscapes,” a group of supporters commented. “These are places where it is uncommon to see other trail users, and where riding requires a high level of physical fitness and technical skill — in many cases it involves pushing a bike instead of riding at all.”  That would be like hiking, wouldn’t it?  So, it’s not like closing the area to this use would exclude these physically fit people from these wild and raw landscapes.  I’ll admit that I don’t understand the rationale of wanting to experience a “wild and raw landscape” on a machine, which (to me) reduces the rawness and wildness of the experience.

The aura of personal opinion and politics behind these wilderness debates is why I focus my energy on other things.  Here there is also talk about snowmobiles and mountain goats, and why mountain goats are treated differently in adjacent national forests.

As for the effects of snowmobiles on mountain goats, the Idaho Department of Fish and Game blamed them for disappearance from one part of this area, but the founder of the Backcountry Sled Patriots says otherwise (citing other research).  The Lolo National Forest cited the negative effect of motorized over-snow machines as reason for designating them a species of conservation concern.  The Nez Perce-Clearwater is not concerned about mountain goats.  The Forest Service minimizes the importance of the areas at issue to mountain goats (though they apparently used to be some places they are not found now).

About the Lolo, Marten, the regional forester, who determines which species are SCC, wrote:

“Compared to other ungulates, the species appears particularly sensitive to human disturbance. Motorized and non-motorized recreation, as well as aerial vehicles, are well documented to affect the species, particularly during winter and kid-rearing season, with impacts ranging from permanent or seasonal (displacement), to changes in behavior and productivity.”

The regional director for ecosystem planning said that she didn’t see the different listing decisions as being in conflict with each other. Rather, she said, they reflect that mountains goats are doing better overall on one forest than the other.  This may be technically/legally possible since SCC are based on persistence in an individual forest plan area.  However, it doesn’t make a lot of sense to me to manage one national forest to increase the risk to, and to contribute to SCC designation on, another forest.  Moreover, the Planning Handbook states that “species of conservation concern in adjoining National Forest System plan areas” should be considered by the regional forester in making this designation.  This all has kind of an arbitrary ring to it.

As for consistent management across national forest boundaries, The Nez Perce-Clearwater plans to change the shape of the Hoodoo RWA to remove the key snowmobile areas from it, so that boundary between the national forests becomes a boundary for the RWA.  The Forest Service points out that the plan revision process in the hands of forest supervisors, not the regional office.  The forest supervisors disclaim any obligation for consistency, and even suggest that travel planning may produce a different result, and “forest plans and travel management plans are continually updated and amended” so they could change again.  That doesn’t square well with history.  The every-third-of-a-century Forest plan revision should be the time to get it right.  Even if the regional forester doesn’t want to say what the plans must do, that person could simply order them to be consistent along this boundary.

Alaska Roadless Rule: II. Rationales for Decision: It’s Too Hard to Change, and Besides Protection Can Be Handled in a Forest Plan

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After yesterday I found this link to the public comments  There were 106 K so perhaps it took a year to analyze them.  I don’t know how many were form comments; usually roadless brings out quite a few of those.  Which might not be helpful at discerning what the public thinks about reinstatement vs. Alternative 2.   I doubt if many of the commenters, at least for the form comments, were even aware of alternative 2.

Here’s one example:

We need to protect our wild spaces more so now than ever. The importance of the Tongas National Forest and the people who call it home can not be understated. Enough of our world is “improved” upon already. We have options other than timber, and other areas to get timber. Preserve at least some of this world as it should be.

In reality, just as with Trump’s choice of removing the Roadless Rule, I think the real reason is that key groups wanted it.  Which is fine, of course, but someone had to write a rationale for the rule text.   I think some explanations are better than others. So let’s examine them.

(1) Adopting Alternative 1 also takes appropriate consideration of consultation with sovereign Tribal Nations, which uniformly and strongly supported Alternative 1.

That is cool that the Tribes all agreed “uniformly and strongly.”

(2) Although Alternative 2 serves many of the same values as Alternative 1, Alternative 2 would introduce potentially confusing changes both to the location of designated Alaska Roadless Areas and to the management prescriptions associated with certain management categories. Alternative 2 also lacks a history of implementation consistent with the 2001 Roadless Rule and the 2016 Forest Plan, potentially complicating implementation.

Doesn’t any new regulation “introduce potentially confusing changes”.. think 2012 Planning Rule, new oil and gas or grazing regulations? or Monumentizing? Don’t they also “lack a history of implementation”?  But sticking to Roadless,  how come Coloradans and Idahoans could handle these complexities but the Department thinks Alaskans can’t?  Thumbs down on this one.

(3) The minor environmental advantages of Alternative 2 do not outweigh Alternative 1’s other advantages and those environmental benefits could be achieved under Alternative 1 through alternative planning and program mechanisms that provide greater flexibility for achieving program goals.

The Forest Service employs various planning and project-specific efforts to maintain and restore watersheds by strategically focusing investments on watershed improvement projects and conservation practices at the landscape and watershed scales. For example, watersheds have unique characteristics and can best be addressed through Forest Planning and site-specific planning.

This is an interesting argument.. “we don’t need to put this in a reg.. because protections on the other 110 K Unroaded Roadless acres can be handled during.. Forest and site-specific planning. Whoa. I thought. This argument is that watershed protection is best achieved through Forest Planning and site-specific planning.  But then why do you need a Roadless Rule at all?  This sounds like an argument for “no Rule.”  For me, that’s a double thumbs down.

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What about renewable energy?

Now, one of the things that Colorado Roadless limited was “linear construction zones” for building pipelines, powerlines, etc.  We had a fascinating time and a court case with the 2001 Rule talking about whether those are “roads” so in the CRR limited them.  I think this is a nice wrap-up of what is allowed in roadless areas with regard to energy infrastructure in the response to comments.

As they say:

The 2001 Roadless Rule has and will continue to accommodate access for qualified mining, energy, and community infrastructure needs while also conserving the multiple ecologic, social, cultural, and economic values
supported by roadless areas on the forest….

 

The Federal Power Act (FPA) grants the Federal Energy Regulatory Commission (FERC) the authority to issue and administer licenses for hydropower projects. For projects located on NFS lands, section 4(e) of the FPA requires FERC to assure the project will not interfere or be inconsistent with the purpose for which the forest reservation was created or acquired. While section 4(e) of the FPA gives the Forest Service the authority to impose mandatory conditions in the FERC license to ensure the adequate protection and use of forest land and resources, these 4(e) conditions cannot usurp FERC’s role in deciding whether to license a hydropower facility. In short, if FERC decides that a road is necessary for facility development, the Forest Service cannot veto the project or road, but rather is limited to imposing reasonable terms and conditions necessary for the adequate protection and utilization of the forest. The 2001 Roadless Rule (at 36 CFR 294.12(b)(3) (2001)) provides that a road may be constructed or reconstructed in an IRA if ‘‘[a] road is needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty.’’ The FPA is one such statute.
The 2001 Roadless Rule also does not prohibit the construction or maintenance of transmission lines. While new temporary or permanent roads are not permitted in IRAs, temporary linear construction zones can be authorized to facilitate the construction of transmission lines, along with other applicable exceptions set forth in the 2001 Roadless Rule. The courts have sustained that interpretation on more than one occasion. The USDA has acknowledged that the restriction on road construction, including the construction of access roads, may pose a challenge for transmission routes that cross IRAs, potentially increasing construction and maintenance costs.
However, based on analysis for previous transmission projects on the Tongass, roaded alternatives are not necessarily less expensive to construct and maintain than those relying on other means of access. Construction and
maintenance costs depend on terrain, distance to communities, and other factors. Helicopter access, temporary construction zones, and/or trails can also be used to provide access and may even be less expensive than the road construction and maintenance costs associated with permanent roads in remote areas. In addition, the rights-of-way granted in section 4407 of Public Law 109–59, as amended, also allows for specified roaded access in the forest for transmission lines and other utility systems.

 

I’m sure that there is other interesting stuff in the response to comments and other sections, so if you find something please put it in the comments below.

 

 

 

Alaska Roadless Rule: The Biden Administration Did Not Select the Environmentally Preferable Alternative: I. The Alternative Not Chosen

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In the possibly least surprising news ever in our world, the Alaska Roadless Rule has been reinstated.  Because Roadless geekhood is part of my lived experience, and because we can’t really expect reporters to understand the ins and outs of Roadless, I’ll take a stab at explaining it in some detail, because I think some interesting points were missed in the news coverage I saw.

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First, a question for our legal TSW folks:

If a District Ranger said specifically what she wanted to do, in say the details of a NEPA project, and announced it in advance, that would be considered “pre-decisional” and we were told that was not a good thing to do; not sure if it’s actually illegal or just bad NEPA practice, or doesn’t build trust with the public.

However, the President said very clearly that he wanted to reinstall the Alaska Roadless Rule specifically.  So that seems pre-decisional also..unless Presidents don’t follow the same rules.  But his (in this case) ideas are carried out via the regulatory process.  So is pre-decisional only an issue for projects and not regs?

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Great Thing

First, they made a new decision from the old EIS, which is great for not making FS employees and others do more work when the ultimate outcome was known. So kudos to the Admin for that!

Why Did it Take So Long?

Looking at their project site, it looks like they did an ANPR on November 23, 2021. I couldn’t find the reading room for the ANPR comments, so I don’t know how many they had.

Now, you might say, this is 2023, why did it take so long? I’d be interested in hearing from anyone who knows the answer.  There were a set of other decisions announced at the same time, and I heard much pressure from ENGOs recently, so maybe they were saving it for an opportune time.

Anyway, here’s the link to the Final Rule.

Which Alternative was the Environmentally Preferred and Why?

What interested me was Alternative 2, which according to the summary in the text:

Alternative 2 provided limited additional timber harvest opportunities in comparison to Alternative 1 by removing protections from certain areas designated as roadless in 2001 while maximizing protection for unroaded
areas by adding other Roadless Area designations. It removed from roadless designation approximately 142,000 acres that were substantially altered by road construction or timber harvest conducted during periods when the Tongass National Forest was exempted from the 2001 Roadless Rule.
Alternative 2 also would have added 110,000 acres of unroaded lands as Alaska Roadless Areas that were not designated by the 2001 Rule, and by extension, remained undesignated in Alternative 1 (the 2020 Rule).

Now, Alternative 2 was designated the Environmentally Preferable Alternative

As described in the 2020 Alaska Roadless Rule decision, Alternative 2 has been determined to be the environmentally preferred alternative, although the environmental benefits of Alternative 2 in comparison to Alternative 1 are minor. While Alternative 2 would designate and manage slightly fewer acres (approximately 32,000 acres) as Alaska Roadless Areas relative to the acres of Inventoried Roadless in Alternative 1, it would increase conservation of roadless characteristics and values because all the acres designated and managed as Alaska Roadless Areas under Alternative 2 are undeveloped at this time. Specifically, Alternative 2 would remove the roadless designation from 142,000 acres that are designated as Inventoried Roadless Areas under Alternative 1, but have already been roaded, harvested, or substantially altered, and therefore do not currently possess the roadless characteristics and values the 2001 Roadless Rule is intended to conserve. At the same time, Alternative 2 would designate as Alaska Roadless Areas approximately 110,000 acres that are undeveloped land but that were not designated as Inventoried Roadless Areas under the 2001 Rule and, by extension, are not designated as such in Alternative 1. Alternative 2 limits timber harvest opportunities, road construction, and road reconstruction, on the most acres of undeveloped land out of all the alternatives considered.
All other action alternatives considered in the 2020 FEIS involve sizeable roadless area reductions. For this reason, Alternative 2 is the environmentally preferred alternative.

For those of you who aren’t familiar with this stuff, the 2001 Rule included lands that were logged and roaded, because of the problems with the maps at the time and the process that they used (including being in a hurry). Knowing that, they put an exception in the 2001 Rule for these areas (the term of art is “substantially altered” but you can substitute Roaded Roadless without any loss of meaning.)

If you look at §294.12, you’ll find that you can maintain classified roads in roadless areas, and also reconstruct them but only if there are environmental threats.

and for timber harvest §294.13 (b) 4: Roadless characteristics have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest. Both the road construction and subsequent timber harvest must have occurred after the area was designated an inventoried roadless area and prior to January 12, 2001. Timber may be cut, sold, or removed only in the substantially altered portion of the inventoried roadless area.

In simple language, the 2001 Rule allows continued maintenance of roads (and reconstruction for environmental problems) and timber harvest on “substantially altered acres.”

So back to Alternative 2. It sounds like the idea was to swap out “Roaded Roadless” for new “Unroaded Roadless ” acres.  This is what the Colorado Rule did.  Given that explanation, let’s go back to why Alternative 2 was designated environmentally preferred .  It would take the 142K acres already roaded, harvested, and substantially altered out, and designate 110K new Unroaded Unharvested acres to put under new Roadless protection.  So that is how the Department concluded:

Alternative 2 limits timber harvest opportunities, road construction, and road reconstruction, on the most acres of undeveloped land out of all the alternatives considered.

My next post will talk about the Department’s stated rationale for not selecting the environmentally preferable alternative in this case.

If you have any questions or corrections please put them in the comments. This is complicated stuff!

Opponents of conservation invoke NEPA

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Image: Scout Environmental

I have made several comments recently about situations that should not trigger NEPA procedures because they do not have adverse effects on the physical environment.  I became interested in this topic in 1986 when I noticed that development interests were arguing that forest plans adversely affected “community stability” (a euphemism for social and economic impacts), and this was being addressed as an “environmental” impact in NEPA documents.  Given that the goal of NEPA was better environmental protection, I could see how inferring that social and economic impacts of protecting the environment must be addressed through a NEPA process could lead to less environmental protection.

As an example of that actually happening, let’s talk about the proposal to conserve 30% of the nation’s lands (America the Beautiful/30 x 30).

Property rights advocate Margaret Byfield’s strategy for defeating the Biden administration’s aggressive conservation pledge comes with a twist: She wants landowners to embrace the nation’s bedrock environmental law.

Byfield, the executive director of American Stewards of Liberty — and daughter of the late E. Wayne Hage, an icon of the Sagebrush Rebellion II movement — sees the National Environmental Policy Act as a cudgel in her campaign to upend the “America the Beautiful” program.

But Byfield emphasized Friday that the strategy must also embrace NEPA, arguing the Biden administration has skirted its responsibility to execute “a programmatic” environmental review of its “America the Beautiful” plan.

“This is the environmentalists’ great law that they use as a weapon against productive agriculture and actually any kind of project,” Byfield said. “They use it to slow down and stop projects, they use it as a weapon.”

Byfield asserted that the Biden administration has skirted NEPA by moving forward without an environmental review.

“They also know if they do NEPA right, it’s going to take them three, maybe six, maybe nine, maybe 10 years to complete the study the way they make us do it. So why aren’t they living under the same laws they force us to follow?” she asked.

The obvious reason is that NEPA was not passed by Congress to protect “agriculture and actually any kind of project.”  The ASL seeks to turn NEPA on its head.  The interesting thing is that the Center for Biological Diversity did not mention this, instead stating that the President and executive orders are exempt from NEPA, and actually inferred that the future site-specific conservation actions could require NEPA procedures.

The law regarding application of NEPA to non-environmental consequences of environmental protection measures is less clear than it should be.  The Supreme Court framed this question in Metropolitan Edison Co. v. People Against Nuclear Energy in 1983

But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.

But, here’s a confusing discussion by the Ninth Circuit in the 2000 case of Kootenai Tribe of Idaho v. Veneman, which challenged the procedures used to adopt the Forest Service’s Roadless Area Conservation Act (the “Roadless Rule”).  (Other plaintiffs in this case were Boise Cascade Corporation, motorized recreation groups, livestock companies, and two Idaho counties.)  The Forest Service did not appeal the district court’s injunction of the Roadless Rule, but an appeal was filed by environmental intervenors, who argued that the Rule did not alter the natural physical environment and require an EIS under NEPA.

Under NEPA, a federal agency is required to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (emphasis added). “Human environment,” in turn, is defined in NEPA’s implementing regulations as “the natural and physical environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14. See also Wetlands, 222 F.3d at 1105. The dispositive issue here is whether the Roadless Rule sufficiently affected the quality of the human environment to trigger the procedural requirements of NEPA.

We have explained that NEPA procedures do not apply to federal actions that maintain the environmental status quo. See Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116-17 (9th Cir.1981) (NEPA does not apply when an agency financed the purchase of an airport already built); Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343-1344 (9th Cir. 1995) (NEPA does not apply when agency transferred title to wetlands already used for grazing); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 (9th Cir.1996) (closure of bicycle trails does not trigger EIS). In other words, “an EIS is not required in order to leave nature alone.” Douglas County, 48 F.3d at 1505 (citation and internal quotation marks omitted). The touchstone of the EIS requirement is whether the change in the status quo is “effected by humans.” Id. at 1506.

Because human intervention, in the form of forest management, has been part of the fabric of our national forests for so long, we conclude that, in the context of this unusual case, the reduction in human intervention that would result from the Roadless Rule actually does alter the environmental status quo.

This perverse rationale (for this “unusual” case) has no citations, and I think it is only justified by a desire to decide the case on the merits of the EIS (which it upheld) rather than on a procedural question.  Moreover, it ignores the additional requirement that the environmental status quo must be adversely affected (the term “adverse” is used many times in the CEQ NEPA regulations).  Here is a 2012 paper on “beneficial effects” under NEPA.  Its conclusion echoes my concern from 35 years ago (which has become a reality).

Third, the policies underlying NEPA are in tension with a Beneficial Impact EIS requirement. Such a requirement would produce unnecessary cost and delay for environmentally beneficial projects and create perverse incentives for federal agencies without any compensating informational benefits.

Agencies that are using NEPA to justify delaying environmental protection are probably not violating the words of NEPA, but clearly violate its spirit.  Moreover, anti-environmental plaintiffs should not be able use the courts to facilitate this violation.

Permanentizing Roadless? House Bill 279

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I’m working on getting a subscription to Bloomberg Law for TSW so all I could get was this snippet.

Permanent roadless area protection is vital to preserving drinking water supplies, cutting wildfire risk, and saving Alaska’s oldest forests, Democrats said during a House Natural Resources subcommittee hearing on Wednesday.

Debate centered on a bill (H.R. 279) that would codify an existing US Forest Service rule prohibiting road building across swaths of national forests nationwide—Democrats’ backlash to a Trump administration decision to lift roadless protections in Alaska. That decisions allowed logging or development across 9.3 million acres of southeast Alaska’s Tongass National Forest.

Perhaps someone could post the rest of the story?  I happen to have spent a great deal of time working on Roadless  here in Colorado, and my experience tells me that the relationship between cutting wildfire risk and roadless is fairly complex.    In fact, that’s why after years of laborious work and public involvement, the Colorado Rule deals specifically with hazardous fuel treatments (because, yes, roadless areas can be close to communities and occur in wildfire-prone areas).  From the Key Elements summary of the final Rule allowed temp roads and specified that hazardous fuel treatments were allowed (otherwise you had to argue about uncharacteristic-ness):

Community Wildfire Protection
• Provides for hazardous fuel treatment by allowing tree cutting and temporary road construction in a defined area of ½ mile from the boundary of an at-risk community, called a community protection zone (CPZ) in the final Rule.
• If specific ground conditions are met, and a Community Wildfire Protection Plan (CWPP) is in place, that boundary may be extended to 1 ½ miles, but temporary roads are prohibited in this additional mile.

Now the Colorado Roadless Rule was signed under the administrations of Governor Hickenlooper (of Colorado, currently Senator) and President Obama.  So it’s interesting that current House Dems would say that codifying the 2001 Rule is vital to “cutting wildfire risk.”  It may sound plausible but it’s not actually true.

Yes, perhaps the bill is performative virtue-signalling to certain groups and will never get anywhere, but I think it’s important to query the ideas behind it and the marketing thereof.

 

New Tongass Roadless Replacement: Rulemaking Questions

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As I predicted (it doesn’t take psychic powers, just experience) , the Trump Alaska Roadless Rule is going away, as this WaPo story says, “replaced or repealed.” The headline says “reinstate” but I’m not sure that’s accurate. The WaPo map shows something of what will be proposed in the new proposed Rule?  Or?

The Biden administration said Friday that it would “repeal or replace” a rule allowing roads and other types of development in more than half of Alaska’s Tongass National Forest, reviving 20-year-old protections President Donald Trump had stripped three months before leaving office.

The move was outlined in the administration’s new regulatory agenda. The notice from the White House said the change was consistent with President Biden’s Jan. 27 executive order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The Agriculture Department expects to publish the proposed rule in August, the notice said.

Does the new proposed rule need a new EIS, I wonder, or can it just adopt the old one (Trump-era one). Seems like they should be able to pick any alternative they want from it. Or are there FS workers even now working to produce a new DEIS to support the Rule? Wouldn’t it need an ANPR? Or did I miss it?

I don’t know about “repealing” regulations.. if it were that easy, wouldn’t all regulations that a new administration doesn’t like be repealed and replaced with ones from the prior administration of the same color?

I’m hoping the Biden Administration uses the work of the FS and other folks who worked in good faith with the feds in the last few years to update the Rule where it needs updating, and not just reinstate the 2001.  As Chris Wood himself famously said “the 2001 Rule was not written on stone tablets.”

 

Alaska Roadless Rule: What About Hydropower and Rare Earth Minerals?

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The Christian Science Monitor has a story on Alaska Roadless here.  I’m not an Alaska expert, but my Roadless Geek antennae started quivering when I read the the below bolded statements.

Lisa Murkowski, a Republican, is the state’s senior senator. Her opposition to the Roadless Rule is “not only about timber,” she says in a phone interview. She says the rule hampers access to mineral resources and hydroelectric sites. The goal, she says, is to “make sure people can actually access the region.”

Mr. Watson, the former Craig mayor, hopes that a new mine extracting rare earth metals, elements in demand for electronics and high performance magnets, will soon open at an inaccessible site on the island, the first such mine in the U.S. But he says red tape could slow approval of a road to the location, even though the Roadless Rule permits transportation corridors in support of such nonlogging activities. “We’d like to have things happen on this island that will allow us to survive,” he said.

Eric Jorgensen, managing attorney of EarthJustice’s Alaska office and veteran of more than a dozen lawsuits countering challenges to the Roadless Rule, says Mr. Watson’s and Sen. Murkowski’s concern is “not based in reality.” He says that “even if red tape were a problem, that would not be a rationale for gutting the rule,” as the Forest Service could solve that issue without allowing new logging roads.

Since we had issues and even litigation about a linear construction zone for a pipeline under the 2001 Rule, I was surprised that the writer (or perhaps Mr. Watson?) said that the 2001 Roadless Rule “permits transportation corridors in support of such nonlogging activities.” It almost sounds as if only “logging” roads are not allowed by the 2001 Rule.

Here’s what the Rule says exactly. It’s short and simple.

§ 294.12 Prohibition on road construction and road reconstruction in inventoried roadless areas.
(a) A road may not be constructed or reconstructed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.
(b) Notwithstanding the prohibition in paragraph (a) of this section, a road may be constructed or reconstructed in an inventoried roadless area if the Responsible Official determines that one of the following circumstances exists:
(1) A road is needed to protect public health and safety in cases of an imminent threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property;
(2) A road is needed to conduct a response action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or to conduct a natural resource restoration action under CERCLA, Section 311 of the Clean Water Act, or the Oil Pollution Act;
(3) A road is needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty;
(4) Road realignment is needed to prevent irreparable resource damage that arises from the design, location, use, or deterioration of a classified road and that cannot be mitigated by road maintenance. Road realignment may occur under this paragraph only if the road is deemed essential for public or private access, natural resource management, or public health and safety;
(5) Road reconstruction is needed to implement a road safety improvement project on a classified road determined to be hazardous on the basis of accident experience or accident potential on that road;
(6) The Secretary of Agriculture determines that a Federal Aid Highway project, authorized pursuant to Title 23 of the United States Code, is in the public interest or is consistent with the purposes for which the land was reserved or acquired and no other reasonable and prudent alternative exists; or
(7) A road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease by the Secretary of the Interior as of January 12, 2001 or for a new lease issued immediately upon expiration of an existing lease. Such road construction or reconstruction must be conducted in a manner that minimizes effects on surface resources, prevents unnecessary or unreasonable surface disturbance, and complies with all applicable lease requirements, land and resource management plan direction, regulations, and laws. Roads constructed or reconstructed pursuant to this paragraph must be obliterated when no longer needed for the purposes of the lease or upon termination or expiration of the lease, whichever is sooner.
(c) Maintenance of classified roads is permissible in inventoried roadless areas

In Colorado, we didn’t see any exceptions for dams (except when their condition is “imminent threat” of flooding)- we had quite a discussion about how this might be defined (!) and addressed in the state-specific Rule. Perhaps the mine under discussion is a patented claim so there would be access? The Forest Service has been litigated successfully for approving road building for patented mining claims (in this case, within the Frank Church Wilderness) and made the Forest Service do extra analysis (not sure what’s happening with this now.)

It seems reasonable to me to question whether the 2001 would allow roads for new hydroelectric facilities or mines. Conceivably, rare earth mines and hydropower are new uses that have increased in importance since 2001 and are also positive in terms of carbon mitigation. Perhaps a mine could be accessed by water. Does anyone have more information on this?

Updated: Digging into the Alaska FS-State Roadless Agreement – How Unusual Is It?

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Administrative Order No. 299, signed September 6, 2018, established the Alaska Roadless Rule Citizen Advisory Committee. The Committee will consist of up to 13 voting members, representing federally recognized tribes in Alaska and Alaska Native regional corporations; environmental organizations; the timber, mining, tourism, energy, and commercial fishing industries; and state and local governments. The Committee will produce a report with recommendations to Governor Walker and State Forester by November 30,

The update is between the asterisks below.

Matthew posted this E&E news story about the Alaska agreements, and the Inspector General report requested by Congressfolk Grijalva and Stabenow. Now Coloradans may remember that Grijalva’s investigations don’t always turn out so well, as when he went after University of Colorado college professor/scientist, Roger Pielke, Jr. by writing to the university president Here’s a link.

My experience with Colorado Roadless was that it was a full-court press by many national environmental groups (I hadn’t worked on a project targeted by Pew before or since) and coverage in the media tended to be one-sided. I’ve still got some traplines out on some details, so will report back if something changes.

Let’s look at the agreement and let it speak for itself. Fortunately, this story provided a copy here.

The State and the Forest Service cooperatively shall:
Establish a State-Forest Service Executive Steering Committee to coordinate the various aspects of implementation of the rulemaking process and the State and Forest Service involvement in NEPA Interdisciplinary teams;
Establish and maintain clear lines of communication, working through the principal contacts;
Cooperate in the development of specific regulatory language for a proposed state-specific rule to establish management direction for Alaska roadless areas;
Jointly develop a detailed work plan that sets out required action steps, milestones, and time frames associated with all aspects of this rulemaking effort;
Cooperate in the preparation of analyses and documentation, development of the description of the proposed action and any alternatives, and the compilation of any required ecological, social, and economic resource information associated with this state-specific roadless rulemaking; and
Coordinate the development of the proposed state rule with the existing land management planning efforts in progress within the State of Alaska.

Again, I don’t know how Idaho did it, but in Colorado we had a memorandum of understanding but no challenge cost-share. My memory is that our state-led Task Force was funded by the State and the national advisory team (RACNAC) funded by the WO (meetings and travel). The FS paid the way of the State employees to attend RACNAC meetings. RACNAC disbanded after Idaho and Colorado, so the Alaska process has only the State advisory committee.

Let’s see how it’s characterized in the news story:

Alaskan officials have no right to waste taxpayer money weakening a rule that protects the Tongass and the public owners of the land,” Grijalva said in a statement. “Congressionally appropriated funds need to be used as they were intended, not to prop up efforts to open more of our national forests to extraction at public expense.”

So conceivably according to Grijalva, neither Colorado nor Idaho Roadless should have been funded (my memory is that they were planning dollars used).

But did they do anything different with the money than Idaho or Colorado? Let’s look at what they say in the agreement.

$250,000 in personnel services to be utilized by DOF senior management proportionally to their involvement in the project.
$43,775 indirect charge on personnel services@ 17.51%.
$1,706,225 in contractual expenses to convene and facilitate a group with a diverse mix of state-specific interests to inform the State’s input as a cooperating agency in the rule making process.

If the State asked for info from industry, that might have come out of their half of the match (remember this kind of agreement requires a match, so the State put 2 mill in and so did the Feds).
As far as I know, in Colorado, we never paid the salaries of the many State officials, from wildlife biologist (who did a great deal of work) to the Director of Natural Resources (ditto), who spent time on the Rule. In our case, the State funded Meridian to help design the public involvement process and facilitate the FS meetings (one of the best investments possible IMHO).

Federal forestry grants are typically used to help reduce wildfire risks, to fight pests and diseases, and for similar purposes. Using the money to influence federal policymakers on a major forest management regulation is an unusual choice, critics said.

The Alaska Wilderness League’s legislative director, Leah Donahey, said directing funds typically used on wildfire measures to logging lobbyists is a “betrayal of the public trust.”

**********************UPDATE 3/18/202*****************
My latest information suggests that the $ did not come from from planning, but from state and private forestry $. Here’s a link to Coop Forestry, which is the bucket of money that seems to fit it most.

The unnamed critics cited in the article are apparently not familiar with the wide variety of grants and cooperative agreements that the FS supports. Still, I don’t think the $ were used to “lobby” -clearly they didn’t need to be, as it’s pretty clear where the Gov and the Congressfolk stood on this issue (exemption). Sidenote: previous Undersecretary for the Forest Service Jim Lyons was heard to say about Urban and Community Forestry grants  (part of Coop Forestry) that “the authorities were so broad you could drive a truck through them.”
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So there may be nothing to see here, really. In Colorado, we didn’t pay anyone to help us figure out what people wanted (coal, ski folks, etc.) , but then on the other hand it might not be as complicated or time-consuming to say “we want to extend the mine below the surface here” or “we wish you’d take out those acres within our ski area permit.” The way I look at it is they actually needed to know for the analysis how much is economic to log and where, because that is the most important reason why in some minds, the 2001 hasn’t worked for them. Reasonable people could disagree whether the Association should have donated the work, or the State should have paid them for it.

The news stories also seem to conflate “spending $ for analysis and meetings” with “determining the outcome.” That is indeed a separate process as we saw in the Governor speaks to the President story.