From AFRC’s latest newsletter (see note and links below):

Oral Argument Held in the Challenge to the Eastside Screens Amendment

On May 1, oral argument was held before U.S. District Court Magistrate Judge Andrew Hallman in Pendleton, Oregon, in a challenge to the Forest Service’s 2021 rule to amend the Eastside Screens (Eastside Screens Amendment). See Greater Hell Canyon Council et al. v. Wilkes, et al., Case No. 2:22-cv-00859-HL (D. Or. filed June 14, 2022). The previous Eastside Screens was an interim management standard for six national forests in eastern Oregon and southwest Washington. The Eastside Screens prohibited the removal of trees over 21-inches diameter at breast height (dbh) where the late old structure (LOS) forest was below its historic range of variability and proposed harvest activity was outside of the LOS. See February Newsletter. AFRC and Eastern Oregon Counties Association intervened in support of the Forest Service.

The Eastside Screens resulted in an inefficient, piecemeal approach to forest management because the Forest Service had to develop numerous project-specific forest plan amendments to accomplish forest health projects. See January 2021 Newsletter. The Eastside Screens Amendment, on the other hand, would allow the removal of trees with diameter limits of 21- to 30-inches dbh based on tree species and growth potential, and trees 150 years and older.

On summary judgment, plaintiffs argued the Forest Service failed to prepare an EIS under NEPA because the Amendment is not “insignificant.” Plaintiffs also alleged that the Forest Service failed to take a “hard look” at the direct, indirect, and cumulative impacts of the Eastside Amendment; failed to follow the required procedures for a significant change to a forest plan; and failed to prepare a Biological Assessment and undergo Section 7 consultation under the ESA. Plaintiffs also claim that the Forest Service failed to conduct a pre-decisional administrative objection resolution process in violation of the National Forest Management Act (NFMA). The Nez Perce Tribe participated in the case as amicus curiae in support of plaintiffs and was able to provide argument during the summary judgment hearing.

Oral argument was divided into four categories: NFMA, Standing/Ripeness, NEPA, and ESA claims. Regarding plaintiffs’ NFMA claim, the Government argued that 36 C.F.R. § 219.51(b) does not provide an objection process for decisions signed by the Under Secretary of the Department of Agriculture and, therefore, the Forest Service’s Eastside Screens Amendment (which was signed by the Under Secretary) did not violate NFMA. Plaintiffs argued that the plain text of the regulation unambiguously requires an objection process unless the Under Secretary actually proposed the Amendment before issuing a final determination, and Judge Hallman seemed sympathetic to that argument.

Judge Hallman asked whether claims under NEPA and the ESA were ripe for judicial review and whether plaintiffs had standing. During argument, the court expressed some concerns as to whether plaintiffs’ ESA claims were ripe because plaintiffs did not allege any interest or particular impacts to ESA-listed species resulting from the Amendment. Judge Hallman also asked several questions about whether the preparation of an EIS was necessary, particularly whether uncertainty and scientific controversy warranted additional analysis. The court asked questions related to whether significant beneficial environmental impacts could warrant an EIS. In response, the Government explained that, even though the Amendment is applicable to six national forests, there is not a significant change from the Eastside Screens in terms of acres impacted. Plaintiffs emphasized their estimate of the number of acres to which the Amendment applies and their position that there is genuine scientific controversy around the Amendment’s flexible guideline for species-specific removal of trees. The Government reiterated that any departure from the guideline in a site-specific project would have to meet the purpose of the guideline and justify the departure.

The parties also discussed the importance of the Ninth Circuit decision in Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir. 2020), in which the court held that the agency did not meaningfully address scientific studies and controversy regarding the efficacy of variable density thinning to reduce fire risk. Intervenors explained to the court how the agency considered and responded to public comments, and the changes made between the draft and final EA in response to public comments. Plaintiffs took issue with how those responses were not provided to the public and only found within the administrative record and in footnotes. Intervenors pointed out that the court should not fall into the trap of form over substance when evaluating the agency’s response to public comments.

Ultimately, Judge Hallman requested the parties submit supplemental briefing on the following: (1) the beneficial impact of the Eastside Screens Amendment in relation to NEPA significance; (2) the context of the Amendment, again in relation to NEPA significance; (3) the Forest Service’s engagement with public comments and opposing viewpoints in the administrative record; and (4) the proper remedy in the event the court were to find a legal violation. AFRC submitted its supplemental briefing on May 30.

In the week prior to oral argument, Dr. James Johnston with the College of Forestry at Oregon State University re-submitted an amicus curiae brief and declaration, joined by eleven other scientists, in support of the science behind the Amendment—the court has not yet ruled on whether to accept Dr. Johnston’s amicus curiae brief. Judge Hallman is expected to issue a Finding and Recommendation by the end of July and, in the event of any objections, those would be reviewed by District Court Judge Ann Aiken. /Sarah Melton

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The Bark v. U.S. Forest Service involves the Crystal Clear Restoration Project on the Mt.  Hood National Forest, which we discussed here. Shortly after the court’s decision was released, the White River Fire burned through the project area. The agency’s Rapid Assessment Team’s report on the fire’s impact is here.

For the NEPA nerds among us…. Fron Brownstein, a law firm.

Much Ado About NEPA

The Fiscal Responsibility Act’s Revisions to the Iconic Statute Largely Codify Existing Interpretation and Practice

On May 31, 2023, the House of Representatives advanced the Fiscal Responsibility Act of 2023 (“FRA”), which would suspend the federal debt limit until Jan. 1, 2025. The FRA passed the Senate last night and will be signed into law by the president. Though largely focused on federal spending, the legislation also amends the National Environmental Policy Act (NEPA) of 1970. The amendments are notable because the statute has rarely been revised in its 53-year history. Because the amendments largely track existing regulations and federal case law interpreting NEPA, the modifications will not significantly change how NEPA is applied in practice. However, by codifying the current regulations, Congress entrenches the provisions, providing project proponents with greater regulatory certainty.

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Here is an indexed 60-minute primer on how “Wild Science” led the way to the creation of the Northwest Forest Plan — basically by six people and three animals: the “Gang of Four,” Bill Clinton, and Judge Dwyer; spotted owls, marbled murrelets, and coho: 

This video is Norm Johnson and Jerry Franklin promoting their new book, The Making of the Northwest Forest Plan, at Oregon State University, mid-May 2023, during which they give a surprisingly honest assessment of how they did it, how it has turned out, and what needs to be done next. I’ve highlighted key words, phrases, and acronyms on the index, so you can just skip to any part you think might be interesting. This is the best 60-minute summary to the Northwest Forest Plan I’m aware of, and I’m guessing it also summarizes their new book fairly well.

They never say “HCP,” they just refer to federal streamside buffers being critical next creations on state, private, and tribal lands and the most important current political focal point — see Oregon’s State Board of Forestry, Private Land Accord, and former “First Oregon State Forest,” the Elliott, for definition and update. That, and systematically killing barred owls in the name of racial purity. I am in full agreement, though,  as to what happened to all of the “critical habitat” in the Labor Day Fires — and also the lasting economic damage to affected rural communities; both barely mentioned.

Biased summary follows Index.

3:30 Norm Johnson /spotted owls

5:40 Pinchot stable communities objective: “old-growth was the fuel for the sustained-yield engine”

6:40 ESA litigation

8:35 Jack Ward Thomas: “It’s not science. It’s scientists doing planning.” “Wild Science!”

10:40 Jerry Franklin: “A different kind of science . . . Who was going to get the money? . . . All kinds of dead wood = Healthy Forest”

17:00 Norm: “The Power of Scientific Authority . . . shocked the world . . . if the managers would just stay out of the way”

19:05 Gang of Four: Norm & Jerry talk old-growth and politics: Accepted by USFS Fall 1990

22:00 “We can map the old-growth in a week!” “Don’t forget about the damned fish!” (Congress)

24:40 Jerry: Yacolt Burn becomes artificial standard for 80-year-old trees (LS/OG!)
“That rule, which they dreamed up in an afternoon, is still there! It’s kind of amazing!”
“Only complete forest ecosystems in the Douglas Fir Region . . . the organisms . . . the processes.”

27:00 [Jim Sedell]/Gordie Reeves: “Gang of Four = Big Kahunas.” Gordon story: “People don’t care about spotted owls — you [fish biologists] just changed the game”

30:15 Norm: “Amazing change: 300-foot buffers on fish-bearing streams” “Fund restoration”

30:35 “Gang of Four Choices” Personal values in 3 or 4 days — “kind of amazing!” Congress approved! They understood owls and fish were incompatible with timber harvest

34:50 Gordie: USFS Planners Really Upset — “probably easiest conclusion I ever reached in my career”

35:55 Spotted Owls: Spring 1992 Judge Dwyer “really changed things” w/ESA invertebrate surveys

36:45 Clinton Plan: FEMAT LS/OG = 2x”Deeply Disappointed” = Option 9 LSRs Riparian Reserves Matrix

40:05 Jerry: Option 9 was “more efficient method of preservation” bringing aquatic-terrestrial together

41:05 Norm: President’s Plan “Released July 1, 1993 after a Furious Debate within the White House” 75% Decrease in Sales vs. spotted owls, marbled murrelets, salmon (Quotes Obama)

42:50 Public Criticism: massive drop in cut = negative employment/community impacts — no Tribes involved — Lawyers need more “protections”

43:40 Northwest Forest Plan: Dwyer “admires and approves” “greatly expanded (x 2) Riparian reserves”
“Moist and Dry” Forests and “the harvest level collapsed” — USFS timber had “near death experience”

47:50 30-Year Scorecard: “Moist Forest plantation thinning saved the federal timber program”
“Stabilized habitat” until the 2020 Labor Day Fires and barred owls . . .
fish need more buffers on lower tree farm and agricultural lands, too
difficult to provide economic assistance to displaced workers and damaged communities

50:20 Why the NWFP Matters: Implemented ecosystem planning: science & lawyers (Trump cite)

50:45 Recommendations: Kill barred owls, adopt “Moist Forest” planning, focus on private properties
Tribes were completely ignored, except for fish benefits — need to be included
started with one listed fish — now more than 30; needs to include private lands for buffers
Jerry: need to manage for future habitats based on current “science”

56:00 Questions: 1) “Survey and Manage?”: doesn’t apply to plantations; hasn’t been “court-tested”
2) BLM “storyline” regarding “conservation?”: “Most innovative . . . in adopting ecosystem management”
3) Wildfire and climate change: Jerry: “Obviously plantations most susceptible to change”
4) Eastern Oregon ladder fuels should be treated: no comment
5) “Newer goals” should include carbon sequestration: no comment

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Bottom Line: Jack Ward Thomas said that “This isn’t science. This is planning done by scientists.” He was exactly right. In my opinion, we should have relied on experienced professionals from the beginning — this experiment of having nameless modelers construct our resource management plans — and our public employee hiring criteria — has been an obvious and costly failure. In 1990 the ESA-endorsed spotted owl allowed the “Gang of Four” and two fish biologists to impose “Ecological Forestry” on our public lands. In the Douglas Fir Region the result has been dozens of catastrophic wildfires, bankrupt counties, millions of dead wildlife, tens of thousands burned homes, thousands of failed businesses, and hundreds of deaths. The cost is in the tens of billions and continues to increase daily. When is it time to say “enough,” and return the active management of our public resources to local control, where the true experts live? Compare the 33 years of successful forest and wildlife management preceding 1990 to the 33 years that have followed. ESA bureaucrats have only been the silent tip of the iceberg in this mess. In my opinion.

Interesting story in the Salem, Oregon, Statesman-Journal.

“‘Missed opportunity?’ Records detail Forest Service response to Beachie Creek Fire before blowup.”

The fire started in a wilderness area.

The Statesman Journal looked at multiple records called “fire decision documents” from the earliest days of the fire, along with daily public records and information released by the Forest Service last week to create a detailed narrative. Among the findings:

• After an initial attack that attempted to put the fire out, crews stepped back and didn’t drop water for nine of 10 days from Aug. 21 to Aug. 30.
• Smokejumpers, hotshot crews and a rappel team attempted to access the fire, but it was deemed beyond the “realm of acceptable risk,” leading to a containment strategy.
• Crews wrote on Aug. 21 that the containment strategy “is vulnerable to resource availability and to critical fire weather events (east winds for example).”
• Later, the Forest Service said calls for additional resources went unanswered even as historically dangerous east winds and fire danger arrived — the two things they feared.
• Independent and retired fire experts who looked at the response were mixed in their assessment. Some said the agency did the best it could given a difficult, dangerous fire location — and limited resources — while others said fire crews were too cautious and should have stayed more aggressive.

Note that this was an extreme fire season in the west, especially in Oregon. Resources were stretched.

The fire burned nearly 200,000 acres of land, destroyed homes in Detroit, Gates, and Mill City, and killed five people.

Just a friendly reminder of TSW’s mission:

For those interested in the etymology of “no-goodnik”, here’s a link.

I attended a Western Governors’ Association meeting a while back and Lesli Allison of the Western Landowners Alliance said something like “partnering with people can get us farther down the road than enemizing each other.”  If this sounds a bit like Michael Webber on decarbonization. As I said in that post:

As in Webber’s essay in Mechanical Engineering, he talks about how this is an “all hands on deck” moment for climate, and we are “better rowing together in the same boat in the same direction.” We need everybody, but it’s hard to take leadership towards a future vision that does not include you.

This might remind you of the timber or grazing workers/industry (“Oil consumption is as much about demand as supply”), or the “vision that does not include you” might resonate with OHV or MB folks.

When do we work with people, and when do we try to get rid of them? Who is behind the decision to enemize or not? Why do we assume the best about wind developers changing practices to reduce bird mortality, but assume the worst about ranchers? It’s almost as if there are “our people and industries” whom we trust to try to do the right thing, and “their people and industries” who need to be heavily regulated because they are not, what? Moral? This seems like an underpinning of many of our discussions nowadays. It comes up in federal land most frequently, but is also found with regards to private land.

Federal lands grazing is not new to me. I remember when some of the ranchers from our tiny community of Lakeview, Oregon, were invited to Ronald Reagan’s first inauguration in 1981. I drove my FS rig over my share of cow patties, in fact when easing my way through a cattle drive I was called a “piss fir.” I still consider them sometimes annoying but legitimate. And who isn’t sometimes annoying?

Fast forward to a conference in 2010 at the University of Colorado Law School Center for Natural Resources on the 40th Anniversary of the Public Land Law Review Commissions’ Report, and our Regional Forester (Rick Cables) was speaking on forest planning with some help from me. Anyway, a fellow named Joe Feller spoke about grazing. He is now deceased, but you can check out his bio here. His attitude was different from anything I had ever seen or experienced.. snarky, as if ranchers were some lower life form (in fact, many speakers at the conference had an air of superiority coupled with some snarkitude). I know many environmental and natural resource law folks are readers of TSW and your contributions are greatly appreciated. I’m just saying that culturally the atmosphere was very different than those at conferences more focused on practices, say, what you might find at a land grant school. It was almost as if ranchers were some kind of inferior life form. Why they might be is a question. And none were actually there at the conference, as far as I could tell.

So through time, we’ve seen the Sierra Club’s “no commercial logging” (1997), the “Cattle free by 93” movement and President Biden’s questionably legal promise of shutting down oil and gas on federal lands. And today that continues via the MOG effort and perhaps the new BLM conservation leasing rule. As to the Sierra Club and Cattle Free, I wonder whether a more collaborative view around improving practices would have been more successful. After all, thirty or so years later, we still have commercial logging and grazing. For those groups, why does “stop it” win over “improve practices”? Could it be because these groups are full of lawyers, and the details of practices are not their forte? If all you have is a hammer.. These efforts also decrease the decision space of local communities..feature or bug?

I have puzzled about this for a long time. I’ve developed different hypotheses but only one seems to fit the facts. We have traditional potentially environmentally destructive commercial uses like timber harvesting, grazing, mining, and fluid mineral production. Then we have good potentially environmentally destructive commercial uses like ski areas, solar and wind farms and strategic minerals (but not uranium). I’m interested in your hypotheses, because as much as I don’t like it, this is the best one I have found that explains this pattern. The people whose environmental practices are assumed to be good donate have tended to donate to one political party, while the others have donated to the other one. Concern for the environment, which naturally draws people together, rather than becoming a concern to bring people on board and unite us, has become divided (by some entities) into good guys and bad guys. But we don’t have to accept those views. We can, and many TSW-ites do, assume the best about other users of federal lands and try to tolerate them, even when some of them can be annoying. Because who among us isn’t? While sometimes I say “stone-casting seems to have become the national pastime”, it doesn’t have to be.

Went to the Zigzag Ranger District this morning for a firewood permit. The station has several “old-growth” rhododendrons that are putting on their annual show. Here are two of them. Click for a larger image. BTW, the community of Zigzag, OR, is just down the road from Rhododendron, OR.

From Nick Smith’s news roundup today….

BLM wilderness areas may be less accessible to the public soon (Washington Policy Center)
Balanced use of public lands has been a contentious issue in the western United States for many years. A rule proposed by the Bureau of Land Management (BLM) would limit recreation and grazing on land previously considered public by creating a framework for “conservation leases.” The BLM manages approximately 10 percent of the landmass in the United States with much of those holdings in the West. BLM’s new director, Tracy Stone-Manning, appears to be seeking a means to circumvent Congress by proposing the change to BLM land use policy through rulemaking despite a long-standing Congressional policy already being in place.

Why does BLM need a new rule to do its job? (New Mexican)
Under the Federal Land Policy and Management Act, the BLM is charged with managing the 245 million acres of public lands under its jurisdiction. That management is subject to a mandate to manage those lands for multiple uses. Historically, “multiple use” has included activities such as recreation, range, timber, minerals, watershed, wildlife and fish and natural scenic, scientific and historical values. A central feature of the BLM’s proposed Public Lands Rule is to transform “conservation” into a “use.” That is, under its proposed rule, the BLM will issue “conservation leases.” Conservation, however, is not a use. It is an objective. The BLM should already have been managing “uses” on our public lands in a way that promotes conservation. Has it? If not, why not? Why, as BLM claims, is a new rule going to make it more efficient or allow it to make better decisions? What’s going on? What’s the real agenda? Who’s behind it?

Jim Petersen’s Q&A with Chief Moore is worth reading….

A conversation with Forest Service Chief, Randy Moore

In this interview, Chief Moore discusses the challenges he faces, including some that will remain challenges long after he retires.

 Although my old “fire prevention guard” job title has been superseded by such titles as “fire prevention technician” or “fire prevention specialist” in ensuing decades, I think my approach to the job as I did it on the Toiyabe National Forest in the 1960s—my philosophy regarding how to do the job—remains valid.

I don’t know that any fire prevention guard ever prevented a fire just by riding around in his or her agency vehicle. I know I didn’t because I didn’t. The key to fire prevention patrol success is public contact, and the key to public contact is to get out of the patrol rig and talk with people.

So, instead of just driving through campgrounds and raising dust, I routinely parked my vehicle and walked the campgrounds. That made me available to visitors, either to initiate conversations or to respond to questions. Outside developed campgrounds, I parked a respectful distance from and walked into camps to greet campers, answer questions, and work a fire prevention message and a campfire permit check into the conversation.  I did the same along heavily-fished streams or wherever else I encountered forest visitors.

Another way I made myself available to the public was by patronizing resort restaurants along my patrol routes. This cost me more than packing a lunch, but it was a rare noon hour at the Crags Resort or  Mono Village restaurants in the Twin Lakes area or at the Virginia Lakes Resort restaurant that I didn’t make at least a few good contacts. I even lunched in sheep camps with hospitable Basque sheepherders a few times.

Availability’s partner in the public contact business is visibility, and I made it a point to look the part, to be easily recognized as a Forest Service representative. A good haircut and a clean shave, a freshly-pressed uniform shirt with badge and nametag in place, clean green jeans and solid work boots, all coupled with a pleasant disposition, project a positive image. There is no place in public service, I agreed with the district ranger and the fire control officer, for slovenly appearance and bad manners. I’ve no proof, of course, but I’m convinced this friendly, helpful, face-to-face approach contributed to my success at the job.

Availability and visibility were enhanced by other patrol route chores. Chief among these was sign installation and maintenance. I often left the ranger station on patrols with new road signs or fire prevention signs to be installed lashed to the rig. In addition to the tank-pump unit and fire tools, there were digging tools, paint brushes, and a five-gallon can of brown stain to help keep all district signs looking fresh. Since signs were almost always along roads or at trailheads, I was available and visible and made valuable public contacts while installing and maintaining them. This approach, I’m convinced, made a positive impression.

And, early on, I learned that—while my primary job was fire prevention—I was expected to know just about anything anyone might want to know about the Toiyabe National Forest and the surrounding country. I made it my job to be a fast learner! And what I knew I supplemented by reference to national forest maps I carried and provided—free of charge in those days—to the public. Assistance to visitors in emergencies, it goes without saying, also was part of the job.

I often wondered just how I was doing at the job. It didn’t seem enough to be told I was doing a good job. I had questions that wouldn’t answer, questions I had to answer for myself. Was my approach to each situation a good one? Did each face-to-face encounter reflect the right mix of diplomacy, empathy, and helpfulness? Was my image one of fairness and competence? Just what kind of impression did I leave with the public? It seemed I was in a position to make good friends or bad enemies for the Forest Service on a daily basis.

Did I worry too much about such things? No, I decided, I didn’t. My job was more than preventing and suppressing forest fires. It was also to win friends for and understanding of the Forest Service and its endeavors. The way I did my job helped mold public opinion of the organization in which I had always wanted to serve.

That’s why I had to be careful. It’s all too easy for someone whose job involves daily contact with a variety of publics—in my case, a wide range of national forest visitors and users—to forget these things, to become indifferent toward or even disdainful of the publics he or she serves. Worse yet, I knew, would be to ape the “badge-heavy” cop or act a “big shot” around these publics.

After all, these visitors and users are the citizen-owners of the National Forest System. It’s “national forest land” that belongs to the people of the United States and is administered for them by the Forest Service, not “Forest Service land.” A small point? A nit-pick? Not at all! It’s an all-important distinction that informs—or should inform—the perceptions of both the public servants and the publics they serve of their respective roles, responsibilities, and prerogatives regarding the national forests and each other.

Although most of the people I met were middle-class California suburbanites, visitors to the Toiyabe National Forest came from all parts of the nation and the world. All deserved the best and friendliest service I could provide. I learned then, and believe still, that pubic service means just that.

Adapted from the 2018 third edition of Toiyabe Patrol, the writer’s memoir of five U.S. Forest Service summers on the Toiyabe National Forest in the 1960s.