Role of local and state governments

Who gets to be “in the room”

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Discussion about the unfair access of litigants to decision-makers ignores the privileged position of local governments and economic interests during the planning process.  That is illustrated by this account of a meeting between the Forest Service, ESA regulatory agencies and northeast Oregon ranchers and county commissioners concerning revision of the Blue Mountains forest plans and changes in grazing requirements.  It sounded good up through the point where a forest supervisor said, “It was a productive meeting.  People said we need to do this more often — get around the table and share our thoughts in a respectful way.”

But here’s what the local public is taking home from the meeting (I’ve added the italics):

One of the major bones of contention with the plan among ranchers was something referred to as Watershed Condition Framework, which would require ranchers to leave taller grass stubble after grazing.  “We got buy-in from the Forest Service that Watershed Condition Framework is out the door,” Nash said.  (WCF is actually a national requirement.)

Matt McElligott of North Powder was asked to attend the meeting as a representative of the cattle industry. He said the county commissioners and the ranchers asked that the Forest Service use grazing guidelines and not standards. The commissioners also asked that those guidelines be assessed allotment by allotment rather than across the more than 5 million acres on the three forests.  “When we left the meeting the other day, we got close to all the points the commissioners wanted,” McElligott said.

Those in attendance methodically went over each point step by step, hashed out the terminology and agreed to the items proposed for inclusion in the Pacific Northwest Regional Forester’s Record of Decision due early next year, McElligott said.

This seems to me to create a lose-lose situation.  Either the attendees get what they want and the Forest Service and regulatory agencies look like they are making backroom deals, or they don’t and they feel betrayed (and might sue).  A reason why such “collaboration” is not a substitute for public involvement and NEPA – or for litigation.

Case on forest plan wilderness recommendations

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Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

R.I.P. Saw Brigade

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In another old case …

The Supreme Court has left in place a lower court ruling that prevents New Mexico from greenlighting tree clearing on federal land in the state in the name of fire prevention.

The Supreme Court declined Monday to hear a dispute between New Mexico and the federal government.

The issue dates back to 2001 when New Mexico passed a law saying the U.S. Forest Service had failed to reduce the threat of forest fires by not clearing undergrowth and removing trees on Forest Service land. The law then gave counties in the state permission to do the work.

When Otero County moved to cut trees on land in the Lincoln National Forest without federal approval in 2011, the United States government sued. Lower courts sided with the federal government.

https://www.abqjournal.com/1072087/supreme-court-declines-to-hear-nm-tree-clearing-dispute.html

R.I.P. Shovel Brigade?

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The Jarbridge Road in Nevada is back under the control of the Forest Service.

A federal judge in Reno ruled against rural Elko County this week — again — and closed the 18-year-old case stemming from a sometimes volatile feud over the road in remote wilderness near the Idaho line.

It began in 1999 when the Clinton administration filed suit against then-Nevada Assemblyman John Carpenter, one of the leaders of a “Shovel Brigade.” They had vowed to rebuild a washed out road near threatened fish habitat along the Jarbidge River in defiance of the government. Carpenter and one of his lawyers, Grant Gerber, have since died.

The county claimed it owned the road under a Civil War-era law that granted state and local governments’ rights of way to existing roads in places where national forests and parks later were established.

The so-called “R.S. 2477 roads” — named after the statute number — became a lightning rod for property rights advocates and anti-federal forces in the 1990s, with similar court battles in Utah, Idaho, Colorado, Oregon and New Mexico.

Like other cases, the federal government denied Elko County’s claim it owned the road before the Humboldt National Forest was established in 1909.

But the Nevada case is unique because, despite the government’s position, the Forest Service signed an agreement with the county in 2001 that said it wouldn’t challenge the county’s alleged right of way.

It looks like the court held that 1) the county did not prove that it owned the road prior to the establishment of the national forest, and 2) the Forest Service could not violate the law by giving away federal land rights though a settlement agreement.  (Of course the county could again appeal this ruling to the 9th Circuit.)

Logging in potential wilderness could foreclose forest plan options

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Taking this story about the Pisgah National Forest at face value, it raises the question of what kind of management is appropriate while a national forest is revising its forest plan.  We just looked at another example of how the Helena-Lewis and Clark National Forest appeared to be anticipating changes that would result from its revised plan, possibly requiring a plan amendment to do so if the proposed project is not consistent with the current plan.

Here, let’s assume that the project to log an area that the locals want to be wilderness is consistent with the current plan, but it would be inconsistent with alternatives being considered for plan revision (normally there would be a forest plan alternative with all potential wilderness areas recommended for wilderness).  NEPA addresses this situation:  “Agencies shall not commit resources prejudicing selection of alternatives before making a final decision” (40 §CFR 1502.2(f)).  However, for a “program environmental impact statement” that is in progress, it implies an exception for where activities are “covered by an existing program statement” (40 CFR §1506.1(c)); it actually restricts actions where they are NOT covered by a plan EIS and is silent on where they are.

I have sometimes wondered if the project planning teams and the forest planning team are talking to each other.  It certainly doesn’t look good when they seem to be working at cross-purposes, and it could be illegal.

When the locals pay for national forest fuel reduction …

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Everybody wins?

“So were Flagstaff officials prescient when they proposed what, at the time, was one of the first municipal partnerships with a national forest to have lands outside city boundaries thinned at city expense?”

“Hindsight is 20-20, but it sure looks that way to us. Armed with a $10 million budget, the Forest Service immediately went to work on an environmental study that mapped the most fireprone timber stands as well as nests of endangered Mexican spotted owls.  Steep slopes most prone to erosion were pegged for less-harmful cable logging, and some stands of old-growth ponderosas were declared off limits. Using collaborative tactics learned from 4FRI, the draft EIS containing a thinning plan was ready in near-record time and drew no lawsuits that would cause delay.”

Could that be because there’s no revenue or profit motive driving more destructive logging practices?

Utah counties make plans for federal lands

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Sagebrush Rebellion light?

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

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

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

Another kind of access challenge

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Sometimes the threat to national forest access results from undeveloped private land adjacent to a national forest becoming a subdivision, and here’s an example of that.

In a recent development (described on a subscription-only site) an Aug. 28 hearing has been set in a lawsuit filed by developer Easter Mountain Ranch LLC (EMR) against Cochise County, Arizona.  The county board had denied approval of a tentative subdivision plat for J6 Ranch, a 278-home gated community planned for the northern foothills of the Whetstone Mountains.  The land to be subdivided abuts the Coronado National Forest.  The issue in the case boils down to a requirement by the county for the developer to “provide multi-purpose (vehicle, pedestrian, equestrian, etc.) legal access to federal lands.”  The proposed subdivision would provide a road that dead-ends at the boundary of the national forest where roads are not allowed.

While the lawsuit about whether the developer met this requirement may hinge on the meaning of “access to,” the question I have is what is the Forest Service position and what has their involvement been.  They are not mentioned here.  It seems likely that the county position was an effort to coordinate with the Forest Service, and what exactly that meant should have been on the table for all parties to understand.  But where was the Forest Service?  (There’s nothing on the EMR or J6 Ranch on the Coronado website.)

Then I wonder about what kind of public access will be allowed through a “gated community.”

Forest Service and BLM slightly lose sage grouse lawsuit in Nevada

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

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

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

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

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

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

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

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

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

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

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

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