Travel Management

Read It Yourself: NOI Preliminary Description of Proposed Action, Travel Management

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There is bound to be quite a bit of coverage of this NOI. So I thought I’d get the proposal itself before we get to others’ statements about it. The problem I’ve noticed over time with proposed rules is that reporting tends to focus on “the worst thing that could happen” not “what is likely to happen after the regulation filters its way down to the field level.” This makes for engaging headlines and quotes, but may leave readers in the dark about the likelihood of feared bad things transpiring. We may have talked about it some, but I don’t remember talking about the e-bike provision.

Here we go:
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Preliminary Description of Proposed Action
The proposed action would establish a new national policy to guide local travel-management decisions, remove the minimization criteria in subparts B and C, revise other identified process requirements, and separately amend subpart A as described below.

Future changes to public access covered by the amended regulations would be governed by the proposed access rule, applicable laws, valid existing rights, other governing instruments, and public participation and governmental coordination requirements identified in the amended rule, Tribal consultation requirements, local access needs, and documented resource and safety considerations. Maps showing designated roads, trails, airfields, trailheads, and other access routes and points would continue to be published and periodically updated for each NFS administrative unit.

The proposed regulations would establish a new regulatory framework governing local decision-making. The Department invites public comment on the following components of that framework:

1. The amended regulations would establish a presumption that existing roads, trails, airfields, trailheads, and other access routes and points on NFS lands are open to appropriate public use unless closure or restriction is required by applicable law, valid existing rights, or another governing instrument, or is supported by specific, documented and justifiable reasons based on science-based resource conditions, public safety, conflicts among uses, or maintenance and administrative capacity. This presumption would include access along section lines in certain national grasslands in North Dakota. The presumption would not itself establish the existence, ownership, or scope of a public right-of-way or establish Forest Service jurisdiction or legal access. Seasonal restrictions could be applied. The amended regulations would require, subject to available appropriations, an annual unit-level process to identify closed or highly restricted trails, roads, airfields, trailheads, and other access routes and points that may warrant reconsideration. The responsible official would conduct the review and indicate which routes or access points may be reconsidered for a change in status. A route would be reopened only through the process prescribed by the proposed access rule and only if reopening would be consistent with applicable law, valid existing rights, other governing instruments, available appropriations, and the governing access and closure criteria.

2. The proposed access rule would establish a requirement to consider new roads, trails, airfields, trailheads, and other access routes and points where appropriate to increase access. The policy would not itself authorize construction or commit resources and would remain subject to applicable law, valid existing rights, governing instruments, site-specific review, and available appropriations.

3. The proposed regulations would address Forest Service management of NFS airfields and the use of NFS lands for aircraft landing and takeoff. It would identify the regulations and existing airfield or aircraft restrictions proposed for amendment and the criteria and process for opening, restricting, or closing an airfield.

4. The proposed access rule would establish processes and conditions for authorizing limited off-route motor vehicle and other motorized equipment use for, among other things, downed big-game retrieval, firewood collection, dispersed camping, and for designating areas for over-snow and other motorized recreation. The proposed regulations would specify whether each use would be authorized through a route or area designation, a written authorization, or a categorical exemption and would establish applicable geographic, seasonal, vehicle-class, and resource-protection conditions.

The proposed action would separately revise specified portions of subpart A. Specifically, section 212.5(b)(1) would be revised to replace the current minimum-road-system requirement with criteria for determining an adequate and appropriate forest transportation system, including access needs, resource protection, safety, maintenance capacity, and applicable land management plan components. Section 212.1 would be revised to define the vehicle and use categories subject to different designation or exemption requirements specified in subparts B and C and part 261, rather than relying exclusively on a motorized or nonmotorized classification. For each provision, the proposed rule would identify whether it would be eliminated, retained in the CFR, moved to another CFR provision, or moved to Agency directives, and would explain any resulting change in legal effect, enforceability, or third-party rights and obligations.

The proposed action would add specified categories of exempt vehicles or uses to the designation and prohibition framework in 36 CFR parts 212 and 261 and would revise that framework to accommodate new vehicle types and uses without relying on a binary motorized or nonmotorized classification.

For purposes of the proposal, “class 1 electric bicycle” would have the meaning in 23 U.S.C. 217(j)(2)(A) and (B)(i). The proposed action would exempt class 1 electric bicycles from the motor vehicle use designation requirement in 36 CFR 212.51(a) and the prohibition in 36 CFR 261.13 when operated on an NFS trail where bicycle use is allowed, subject to applicable land management plan direction, seasonal restrictions, orders, and site-specific restrictions adopted by the responsible official under the criteria and procedures in the proposed rule. The EIS would analyze an alternative retaining class 1 e-bikes as motor vehicles subject to motor vehicle use designations and alternatives adopting broader or narrower exemption conditions.

Any additional categorical authorization for low-powered electric mobility devices used by persons with mobility disabilities would be defined by objective criteria in the proposed rule, including the covered devices and the scope and conditions of the authorization, and coordinated with applicable disability-access requirements. Any additional authorization would supplement, and would not limit, existing rights or Agency obligations under applicable disability-access laws. These changes would be evaluated in light of approaches used by other Federal and State land management agencies.

With regard to subparts B and C, the proposed action would establish an access-planning process and would not itself authorize construction or other ground-disturbing activities or projects. The access presumption set forth in the national policy would guide future decisions and would not itself open a currently closed route, airfield, trailhead, or other access point except to the extent that the amended regulations expressly make a specified vehicle- or use-specific exemption self-executing. Existing motor vehicle use designations, including the designations shown on MVUMs and OSVUMs, would remain in effect until revised under the amended regulations. Prohibitions established under other authorities would remain in effect until modified, rescinded, or expired under those authorities.

Future site-specific designation decisions would be made by local officials after analysis and evaluation of land and resource conditions, consistent with applicable law. If the rule removes sections 212.52 and 212.53, it would identify the public involvement, governmental-coordination, and Tribal-consultation requirements that will govern future designation and revision decisions.

The Missing Middle I: Roadless, Travel Management, and Wildfire Use

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First of all, for context, a big shout-out to the California Assembly for this (from Jennifer Pahlka):

Last November, I wrote about an experiment in the California Assembly designed to change that. Speaker Robert Rivas launched a pilot called Outcomes Reviews: a structured process by which a legislator and their staff publicly commit to reviewing a law they championed, spend months meeting with the people the law actually affects and researching the outcomes, and then announce what they learned and what they’re going to do about it. Earlier this week, his office announced the results of the pilot year. Fifteen Assemblymembers reviewed fourteen laws, covering housing, energy, health care, foster care, wildfire recovery, and more. According to the Speaker’s office, the program will continue next session, with more members and more reviews, on its way to becoming a permanent part of how Assembly policy teams work.

Just like the Assemblyfolk in California, can you imagine the US Congress doing the same? I’d put NFMA on the top of my list for review.. But there’s no reason the Executive Branch, or even partners, or universities or someone out there could do a review with recommendations.  That’s basically what Idaho and Colorado did with their Roadless Rules.

When it comes to Roadless, NWFP, Travel Management and Wildfire Use, basically some people have not been happy with the way things are working, and want to review and fix things. The NWFP, not reviewed and improved (although efforts were made last Admin) but with certain critiques apparently off-limits. The Roadless Rule. The Travel Management Rule. The Planning Rule. Wildfire Use.

Yet, how are some of these efforts covered in some media elements? As “all or nothing.”

Even though there’s an Alternative 3 for Roadless.

Even though folks like the American Motorcycle Association American Motorcycle Association that include those ideas (thank you to The Wilderness Society for sending this!):

As the Forest Service considers how best to move forward, it is important that any change to these regulations should preserve current access and ideally improve and streamline TMP-related decisions. However, a full repeal of the 2005 rule risks creating agency and user confusion and additional fragmentation of these areas. This process, although not perfect, was the result of close collaboration among recreation and conservation groups with Forest Service officials. Future decisions, while guided by national policies, should be made at the local level with these same stakeholders involved in the process.

There are many interest groups out there engaging on Travel Management (and likely Roadless) with  “fix but don’t throw out”, with their own lists of experiences or issues that they would prefer to be changed.

Now, why would the Admin propose rescinding if they really plan to do something in the middle?

Here’s why I would hypothesize, not being privy to their deliberations:

a) The old English “you might as well be hanged for a sheep as a lamb.”  Any tweaking will cause hyperbolic outrage, so why not go for the full thing at the beginning? Those of us who worked on the State rules have been through the media/NGO full-court press already, and maybe those groups can recycle their talking points from the State Petitions Rule and the State rules.

b) There will be high-quality and extensive litigation, so moving from a proposal to a final and considering public comments always looks good.  Sure 99% of the comments are likely to be form letters generated by clicking on a “do you want your forests destroyed” button, but still.

c) As my old boss Fred Norbury used to say “we don’t need to negotiate with ourselves.” I looked this up on Linked in and  found “why we do it.”

  • Lack of confidence: You don’t fully believe your position is legitimate, so you soften it before anyone even pushes back.
  • People-pleasing: You want to be liked (or at least not disliked), and you’ve convinced yourself that a more aggressive position will make you the villain.
  • Conflict aversion: You believe that holding firm will make things worse, so you try to smooth the road before you’ve even hit a bump.
  • Past baggage: A difficult history with someone leads you to presume the worst, so you preemptively adjust to avoid what you’re convinced is inevitable.
  • Deal fatigue: You’ve been working on this for months, and you just want it done. Any deal sounds better than no deal, so you start making mental price cuts before the first offer is on the table.

d) They get points from user groups for being influenced by them to change toward the reasonable from the disruptive.

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Next: The Middle on Wildfire Use: It Exists

 

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.

Over the Weekend – Blue Mtn. blues, Flathead secrets and monumental benefits

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I guess this is a bookend to Sharon’s “Friday News Roundup.”

 

BLUE MOUNTAINS

I recently provided an update on the status of the Blue Mountains forest plan revisions here.   And here’s a little more detail on that, especially on the question of “access.”  (This term gets used for a couple of different things, and this one is about closing roads on national forests rather than creating access across private property to reach public lands.)

One group says its leading the charge to fight for what they call “original rights” is Forest Access for All.  “We defend the rights that we’ve had since Oregon was a territory, free reign where we go and utilize the forests which are public lands,” says Bill Harvey, a group member and former Baker County Commissioner. “A couple decades ago the Forest Service began closing off sections of the forest and that’s when Forest Access for All was formed.” Harvey says his group’s particular ire is at the Wallowa-Whitman National Forest (WWNF), which he claims “have closed thousands of miles of roads in the forest the last twenty years.”

The group also has other “conflicts” with the Forest Service include the need for  more vegetation management, economic benefits of (motorized) recreation, and better public engagement.

“By law right now, we have an open forest. They will admit it, everybody admits it, and it’s in the books, I’ve seen it a million times. It is an open access forest,” says Harvey. “Why in God’s name would we want to give that up? Nothing benefits us to give up our rights that we have currently. We’re not asking for more rights, we’re asking for the existing rights to stay in place.

I’m going to disagree with him on this one, and I hope the Forest Service does, too (although it looks like they could have done a better job of setting the locals straight on this before now).  In 2005, Subpart B of the Travel Management Rule changed the culture of motor vehicle use on roads, trails, and areas from “Open unless closed” to a system of designated routes.  As for why?  The goal was to reduce resource damage from unmanaged motor vehicle use off that road system.

 

FLATHEAD

Newly revealed emails show that the Flathead National Forest under then supervisor Kurt Steele looked to keep a proposal of a tram up Columbia Mountain from public view for more than year prior to it being first proposed.

Does this sound familiar?  It sounds to me like the “Holland Lake Model” that got the forest supervisor a “promotion” to forest planning.  In this case the Forest properly rejected the proposal as inconsistent with its forest plan (thank you forest plan!).  But it does suggest a pattern of incentives and behavior that may be broader than the Flathead National Forest.

“The process where the public comes into play is when it becomes the NEPA process,” Flathead Forest spokesperson Kira Powell said about the emails.

“Bringing you into the conversation about this potential project on the Flathead NF because it’s coming from investors who apparently have the financial resources to build a tramway, meaning they likely have political savvy also … wrote Keith Lannom, who was deputy regional forester for Region 1 at the time …”

This account offers a window into the role of “political savvy” in Forest Service decision-making.

 

ORGAN MOUNTAINS – DESERT PEAKS NATIONAL MONUMENT

Since President Barack Obama created the Organ Mountains-Desert Peaks National Monument in 2014, visitation has tripled and the national monument has spurred economic growth in the Las Cruces area as well as other communities near the national monument, according to a new report.

According to this overview, the report looks at the various factors that made this particular monument so successful, including its location relative to population centers and the uses it caters to.  Also local community support.

“We have always recognized that the establishment of the monument was due in large part to the grassroots effort at the local community organizations and individuals,” Melanie Barnes, the state BLM director, said. “And due to this engaged and proud community, the monument has seen an increase in visitation.”

She said the BLM is working on a resource management plan that will address land use and resource protection. The public scoping period for that plan recently ended.

 

Recreation effects on wildlife conference

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The effect of recreation on wildlife is a topic that has come up a few times here.  It has apparently reached the visibility of a “conference theme,” at least in Canada: “Responsible Recreation: Pathways, Practices and Possibilities.”  This conference in May focused on the Columbia Mountains in southern B. C., but may be of broader interest.  You can still sign up to see the recorded conference until the 16th, but the written proceedings are available from this website.

From the conference description:

Recreation and adventure tourism opportunities and activities are expanding globally, with the Columbia Mountains region being no exception. From hiking, mountain biking, snowmobiling, dirt biking, cross-country skiing, to motorized and non-motorized watercraft use, all activities can have an impact on wildlife and ecosystems. However, empirical measures of impacts are often difficult to obtain, with unknown thresholds that ultimately affect the viability of wildlife populations and ecosystems. This limits policy development and impact management. Furthermore, the cumulative effect of multiple overlapping recreational and industrial activities on the landscape are seldom considered or addressed.

 

Effects of e-bikes on wildlife management areas

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by AltoRider

We’ve discussed e-bikes, and one of the questions was what kinds of effects they have, and on wildlife in particular.  It looks like some places have seen enough use to say something about that.  Here is one report on that from the Utah Division of Wildlife Resources.

Class II and Class III e-bikes are now banned in off-road areas at all 193 wildlife and waterfowl management areas in the state, according to the Utah Division of Wildlife Resources…

Division officials explained that they altered the rule because some e-bikes were “ruining” habitat meant to protect the state’s wildlife. They believe the rule change can help reduce habitat destruction.

“In areas where there is a lot of e-bike use, notable habitat damage is occurring,” said Utah Division of Wildlife Resources Capt. Chad Bettridge in a statement Thursday. “With the increased use of e-bikes, we are seeing these properties damaged, ultimately limiting our ability to manage them for their intended purpose.”

“While we would like to provide recreational opportunities on our WMAs, these properties were purchased for the benefit of wildlife and wildlife habitat,” he said. “These properties are public land, but they are not multiple-use like many other state and federally-owned properties.”

California Nine-Forest Hazard Tree Plan: Currently in Prep

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I couldn’t find a photo of a cleared California highway or forest road.. this is from Colorado.

Region 5 is working on a  hazard tree decision for certain burned areas on certain (9 total) Forests with wildfires.  It sounds like they are looking toward doing one EA per zone. This seems like an interesting experiment to see what can be standardized and what is best done at the zone or forest level.

Here’s a link to the documents. From scoping letter.

I am writing to inform you of the opportunity to provide input on the R5 Post Disturbance Hazardous Tree Management Project in the Forest Service Pacific Southwest Region (Region 5). Due to the time-sensitive nature of the proposed hazard tree removal, I am requesting your input on the proposed action briefly described below within the next 21 days, by November 15, 2021, to ensure your comments are fully considered during this public scoping opportunity.


The record wildfire years in 2020 and 2021 in California have resulted in fire-killed or damaged trees that pose threats to public health, safety, and property. The R5 Post Disturbance Hazardous Tree Management project includes hazard tree felling and removal, as well as removal of downed woody fuels resulting from hazard trees (slash), to reduce public safety hazards along portions of roads, trails, and near facilities (campgrounds, trail heads, Forest Service offices). We have identified a need to expedite analysis and decision making related to this project, which includes activities that are not novel, and for which the effects are generally well-known.


Hazard tree felling, removal, and slash removal is proposed in specific project areas within the following national forests: Inyo, Klamath, Lassen, Mendocino, Modoc, Plumas, Sequoia, Shasta-Trinity, Sierra, and Six Rivers within the North, Central, and Southern Sierra sub-regional zones.


To initiate the scoping process for this project, a more detailed description of the proposed action has been developed to provide the public and other stakeholders an opportunity to review and comment on the proposal. A copy of the proposed action and associated maps can be found on the project website (https://www.fs.usda.gov/project/?project=60950).

Based on the nature of activities being proposed, we intend to document the National Environmental Policy Act environmental analysis for these activities within separate environmental assessments for each of the three zones. The environmental assessments will be made available for public review during an upcoming 30-day comment period per 36 CFR 218.22 (anticipated January 2022). Ultimately, the Forest Supervisors will decide whether to implement the proposed actions on each Forest, implement an alternative action that meets the purpose and need, or take no action.

What’s interesting to me about this article about it from California Wild, compared to our Williamette discussion, is this idea..

In the past, wildfire-damaged hazard trees in undeveloped areas and along backcountry roads and trails are removed annually before the start of the summer recreation season. This reduces the hazard of trees falling on recreational visitors. And it also allows for the conservative retention of trees damaged but not necessarily killed or condemned to die by the fire. But the Forest Service no longer has the funding or staff to remove fallen or soon-to-fall trees on an annual basis and over the hundreds of thousands of acres that have burned in the last few years. Roughly 120,000 miles of trail, or about 75% of the National Forest trail system, already require some level of maintenance or repair. The massive hazard tree removal program proposed by the agency may lead to significant trail repair in some areas, but at the expense of the wilderness and recreational experience.

This is the “do it as they fall, but they can’t afford to” argument.

CalWild’s comments did not opposes hazard tree removal along roads, although this too has its drawbacks. Wide swaths of forest along some of the most scenic highways and roads in Northwest California and in the Sierra Nevada are proposed for clearing. Eliminating hazard tree removal taking place in sensitive wild places like roadless areas will help expedite the process. In addition, our comments requested that project not be expedited in a manner that bypasses the crucial public review, comment, and alternatives development process provided by the National Environmental Policy Act (NEPA).

California Wild also thinks that “swaths” or “denuding” along trials impairs “outstanding recreation values”. That might be in the eye of the beholder, especially in a burned over area.

They also say:

The Forest Service may seek an “Emergency Situation Determination” (ESD) from the Chief of the Forest Service to expedite the proposed project. This would enable the agency to sell hazard trees for their commercial value before they begin to rot, but it bypasses the pre-decisional objection process, which allows the public and other affected agencies to object to project actions and negotiate positive changes.

I’m kind of sympathetic to this.. the more detailed a project proposal is, the less need there is for two bites at the apple (comments and objections). It does draw attention to the objection “negotiation” process.  I’ve only heard stories about these and would be interested in peoples’ experiences.  For a different thread, though…

Some roads may be useful for clearing a corridor due to their location for potential strategic fire breaks…(plus for roads with faster speeds, it seems like it would help reduce vehicle/wildlife collisions.)

In fact, CalTrans has a plan about the former for state highways.

Overview

State highways extend through every county and range of elevation in California.  Over 5,000 centerline miles of state highways are built in a rural setting of natural landscapes, including forestland, chaparral and grassland winding through mountains and along coastlines.  Historically, active forest management of forests was discouraged in California, but this has resulted in unhealthy, overly dense timber and vegetation which increases wildfire vulnerability and decreases forest health. Drought has triggered widespread accelerated forest mortality.

Defensible space, in the context of fire control, is a natural or landscaped area around a structure that has been maintained to reduce fire danger. Through the Division of Maintenance, Caltrans prepared a Wildfire Vulnerability Analysis (2020-2030) which identifies the highway corridors that are a priority for fuels reduction to create defensible space.  Fuels reduction projects with local, state and federal partners would reduce wildfire vulnerability to life, property and ecosystem services.

Defensible space can also mitigate the probability of wildfire ignitions originating from vehicles and travelers, reduce direct impacts to state highway assets when wildfires do occur, and maximize traffic flow for all modes of transportation during normal and emergency operations.

So roads as defensible space are a thing also, at least in California.  Another reasons to focus on getting PODs delineated ASAP, IMHO.

Recent forest plan litigation

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Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.

Flathead court decision

The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout.  The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements.  The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects.  I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.

This article quotes the judge on the crux of the case regarding grizzly bears:

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Additionally, the article continues:

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.

A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.

This article quotes timber industry intervenors:

“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.

Colville new lawsuit

There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.

One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.”  The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.

The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):

The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.

Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.

The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.

The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.

It’s great that they actually projected the amount of late forest structure.  Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions.  I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing).  The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?

The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.

This is an important interpretation of what they think their forest plan requires.  Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.

Forest plans and legislation – Blackfoot-Clearwater wilderness proposal

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Blackfoot-Clearwater Stewardship Project map, Feb. 2018.

Wilderness designation has always been controversial in Montana.  No new wilderness areas have been established by Congress since I believe 1977, and unlike most states there has never been statewide wilderness legislation.  The Blackfoot-Clearwater proposal to designate 90,000 acres on the Lolo National Forest was locally developed and has been pending in Congress for several years.  Its development included addressing issues related to motorized and mechanized recreation that we have been discussing here, and designates areas for both.  This article provides some background, and includes a link to the written statement from the Forest Service regarding the proposed legislation.

The statement relates to forest planning in a couple of ways.  First, the Forest Service uses the Lolo National Forest forest plan as the foundation for its position on the legislation.

We also have concerns about implementing section 202, which establishes the Spread Mountain Recreation Area for the apparent purpose of enhancing mountain biking opportunities. The Lolo’s current land and resource management plan identifies this area as recommended wilderness. This area is characterized generally by steep topography, sensitive soils, and contains sensitive fish and wildlife habitat. Trail 166 is the main access into this area. This trail is not maintained, not passable by riders on horseback, and becomes difficult to locate after the first mile. While we acknowledge the interest in expanding opportunities for mountain biking on the Lolo, we are concerned that the site designated for the Spread Mountain Recreation Area is not well-suited for this use, and that this designation could create conflicts with wildlife and other recreation uses.

Two of the three wilderness designations in Title III are consistent with the recommendations made in the existing Lolo National Forest land and resource management plan. The third designation (West Fork Clearwater) was not recommended in the management plan to be Wilderness, it was allocated to be managed to optimize recovery of the Grizzly Bear.

One might argue that the 1986 forest plan is outdated, and recent local efforts should be given greater consideration.  However, those efforts have not been through any formal public process, so I commend the Forest Service for using its forest plan.  I’m not sure whether NFMA’s consistency requirement applies to taking positions on legislation, but it is probably the right place to start.  The proposal is also interesting in its legislative designation of two “recreation areas,” taking these decisions out of the forest planning process.

The Lolo is scheduled to begin its forest plan revision process in 2023, and the Forest Service is also concerned about the interaction between the revision process and this legislation.  It sounds like mostly a budgetary concern:

Our primary concerns pertain to Title II. Section 203 which would require the Forest Service to prepare a National Environmental Policy Act analysis for any collaboratively developed proposal to improve motorized and non-motorized recreational trail opportunities within the Ranger District within three years of receipt of the proposal… If passed in its current form, this bill could require recreation use allocation planning for site-specific portions of the Seeley Lake Ranger District ahead of the broader plan revision process, which would forestall the Lolo’s ability to broadly inform land use allocations across the forest through the plan revision process… If enacted, the explicit timeframes currently contained in the bill could result in prioritizing the analysis of a collaboratively developed proposal to expand the trail system over other emergent work.

But they might also be suggesting that the site-specific recreation planning would benefit from waiting until the forest plan is revised.  (Or maybe they just don’t like deadlines.)

Good news for wildlife on two national forests

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Here are two different kinds of success stories about restoring wildlife species that have been missing from national forests.

 

 

Grizzly bears – Lolo National Forest.

Current efforts on the Lolo National Forest demonstrate one way that forest plans can improve conditions for at-risk species; in this case the plan is contributing to conservation of the federally threatened grizzly bear. Grizzly bears have been sighted in recent years in this part of the Forest, but none are females or considered to be residents.

In 2011, the forest plan was amended to include what is commonly referred to as the Access Amendment (similar amendments also applied to the Kootenai and Idaho Panhandle national forests, prior to the revision of their forest plans).  The amendment established “standards” for motorized road and trail density in grizzly bear management units (BMUs, there is one on the Lolo).  In many cases, the current conditions did not meet these standards, so in the terminology of the 2012 Planning Rule, these would be desired conditions or objectives to be achieved.  In addition, their achievement was assumed in the biological opinion on the effects of the forest plan on grizzly bears prepared by the Fish and Wildlife Service, and failure to achieve them would likely trigger the need to reinitiate consultation on the forest plan (which had happened on the Flathead National Forest).  So there is a little added incentive, but here is what they are doing now.

The Forest has completed the “BMU 22 Compliance Environmental Assessment.”  In it they have proposed to formally close some roads that are effectively closed already and 21 trail miles currently open to motorized use.  In response to public comments, they are also considering an alternative that would close fewer trails, and instead close some roads currently open to motorized use.  In addition to other closures included with some prior vegetation management projects both alternatives “would bring the Forest into compliance with the Forest Plan motorized access management standards for the Cabinet-Yaak grizzly bear recovery zone.”

Brown-headed nuthatch – Mark Twain National Forest

The nuthatch is not at-risk range-wide, but they have not been found in Missouri for at least a century.  The species requires shortleaf pine and oak woodland forests, which have been greatly reduced from historic levels.  The loss of these forests has prompted an ecosystem restoration effort across Missouri, Arkansas and Oklahoma (notably using the Collaborative Forest Landscape Restoration Program).  Restoration of such forests is a desired outcome of the Mark Twain forest plan.  Curiously, there is no mention of the brown-headed nuthatch in the 2005 forest plan, although it does address other species using the same habitat:

Objective 1.4a Improve open woodland conditions on at least 10,500 acres to provide habitat for summer tanager, northern bobwhite, Bachman’s sparrow, and eastern red bat.

The EIS states that the nuthatch is a Management Indicator Species for forest plan monitoring, but that doesn’t seem to be in the plan itself.  Of course, a species that is absent from a national forest would not make a good MIS.  In any case, it looks like there was no interest by the Mark Twain in reestablishing a species that was not present on the forest under that rules applicable to forest planning in 2005.

However, Forest Service, state and university researchers came to the rescue of the species, determining that sufficient woodlands now exist in Missouri to support a population of Brown-headed Nuthatches, that populations in Arkansas were robust enough to supply birds to Missouri, but that nuthatches are not likely to make the return on their own because of the distance and habitat fragmentation.  The Mark Twain National Forest site was chosen for the release of 100 birds because it is the largest area of open pine woodlands in the state.

Under the 2012 Planning Rule, the Forest Service would probably argue that this species is not “known to occur” in the plan area, so the requirement to provide ecological conditions for it (as a species of conservation concern) would not apply.  However, the separate requirement for ecological integrity requires “species composition and diversity” to occur within the natural range of variation.  That should make the Forest Service more proactive in reestablishing species that historically occurred there.  (The forest plan also omits the listed red-cockaded woodpecker, which also uses these habitats, is also absent, but must be conserved and recovered.)

(For a look at how the natural range of variation might work under the 2012 Planning Rule see Table A-2, “Desired conditions for natural community types.”)