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NFS Litigation Weekly November 30, 2018

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Forest Service summaries:  Litigation Weekly Nov 30

The district court upheld the Moose Creek Vegetation Project on the Helena-Lewis and Clark National Forest with respect to Healthy Forest Restoration Act compliance.  (D. Mont.)

  • Greenpeace v. Stewart

The Ninth Circuit Court of Appeals reversed the district court and the Forest Service on four timber sales on the Tongass National Forest because of flawed analysis of deer habitat.  (9th Cir.)

  • Quiet title claims

(New cases – no links.)  Five plaintiffs in different cases seek to quiet title regarding rights to irrigation diversion structures on the Sawtooth National Forest.  (D. Idaho)

 

BLOGGER’S BONUS

(There was no link provided by the Forest Service above, but the article I linked includes a link to the court decision.)  This is a case that has been litigated for “over a decade.”  The 9th Circuit stated, “USFS has been given multiple opportunities to correct flaws in its project analysis and has ignored this court’s guidance.”  I wanted to emphasize the holding on species viability (these are rare deer).  The deer model was flawed because it “was too unreliable to be used in conjunction with the proxy on proxy approach of ensuring species viability.” The court cited the precedent of Lands Council v. Powell from 2005: “Crucial to [the proxy on proxy] approach . . . is that the methodology for identifying the habitat proxy be sound.”  Since the coarse filter approach sanctioned by the 2012 Planning Rule uses habitat as a proxy for species viability, this will place a premium on demonstrating that coarse filter vegetation plan components will provide the ecological conditions needed for at-risk species.  Typical forest plan revision documentation does not seem to take this requirement to demonstrate the soundness of their methodologies very seriously (despite the requirement in 36 CFR §219.9(b)(1) to make this determination).

This is the final step in resolving a case that was begun in 2009 and led to injunctions against several timber sales on the Kootenai National Forest.  The Montana district court held that the Forest had complied with the requirements of the injunction for the Miller West Fisher Project, and it was therefore dissolved.  Plaintiffs conceded all points except one involving the Endangered Species Act – the need to analyze incidental take for grizzly bears that may be harmed outside of their recovery zone.  The Forest relied on the analysis of incidental take done for a grizzly bear access amendment that is now included in its revised forest plan.  The court upheld a “tiered” consultation process, where analysis at the forest plan level is sufficient for projects unless “proposed actions would result in adverse effects to grizzly bears that were not fully analyzed in the first-tier biological opinion (emphasis by the court).  In its concurrence that the project is not likely to adversely affect grizzly bears, the Fish and Wildlife Service determined that, “the proposed action is not likely to adversely affect the threatened grizzly bear in ways other than described in the2011 consultation on the Access Amendment”(emphasis by the court), and that analysis did not need to be repeated.  (D. Mont.)

 

 

68 million acres of fuel reduction and landscape restoration

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There’s been a lot of talk (and press) lately about wildfires, public lands logging and fuel reduction, especially related to many statements coming out of the Trump administration, including Interior Secretary Ryan Zinke (who blamed the wildfires in California on “environmental terrorist groups” and “environmental radicals”) and Agriculture Secretary Sonny Perdue, who is in charge of the U.S. Forest Service.

The basic narrative from the Trump administration, many GOP politicians and some in the timber industry is that the federal government can’t do any logging or fuel reduction because of environmentalists.

Turns out that, according to the federal government, between FY 2001 and FY 2017 the U.S. Forest Service and Department of interior accomplished approximately 68 MILLION acres of hazardous fuels reduction and landscape restoration. See for yourself right here.

We seriously live in strange times when treating over 106,000 square miles of land over a period of less than 20 years is basically characterized as doing nothing and “hands-off management.”

“The fires that are getting everybody’s attention right now are not about forest management.”

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The full article from the San Diego Union Tribune is here. Below are some interesting snips, featuring the perspectives of Leroy Westerling, a professor and researcher specializing in global warming and wildfire at the University of California at Merced and Char Miller, a professor of environmental analysis at Pomona College (and sometimes a contributor on this blog).

Much of what Dr. Westerling and Miller are saying in this article has also been said by America citizens that Secretary Zinke has labeled “environmental terrorists” and “radicals” while blaming them for wildfires in California. Much of what’s below has also been said by many other ecologists and scientists, such as Dr. Chad Hanson and Rick Halsey of the California Chaparral Institute, who are regularly criticized and attacked by some folks on this blog.

[A]ccording to research scientists and ecologists, wildfire’s increasing toll on life and property in recent years has been overwhelmingly driven by global warming and patterns of development — not the state’s most densely wooded areas.

“The fires that are getting everybody’s attention right now are not about forest management,” said Leroy Westerling, a professor and researcher specializing in global warming and wildfire at the University of California at Merced.

“The major factor is climate change across the west,” he added. “Regardless of fuels management, we just wouldn’t be burning like this, especially in Northern California, in a normal year.”

In fact, few if any of California’s most destructive blazes dating back to the early 20th century have been driven by densely packed forests, according to a review of records kept by the California Department of Forestry and Fire Protection, also known as Cal Fire.

The most devastating and deadly conflagrations have most often resulted from high winds whipping fire through dried out chaparral and grasslands. These blazes often torch sprawling subdivisions that abut undeveloped landscapes, such as the Tubbs Fire did in Santa Rosa last fall.

Even the Camp Fire, which occurred in the foothills of the Sierra Nevada, spread on strong easterly winds blowing down from the mountains across heavily logged forests before jumping from house to house. Trees were one of the only things that remained intact after walls of flame swept through the town of Paradise.

Now a chorus of academics and ecology and policy experts have spoken out across the state — from Stanford University to Sonoma State University to University of California at Santa Barbara — calling on regional governments to tighten zoning rules and even consider buying people out of homes in fire-prone areas.

“We’ve got to do something smarter than what we’ve been doing,” said Char Miller, a professor of environmental analysis at Pomona College, who has proposed the creation of flood and fire bonds that would allow local governments to purchase and set aside property in high-fire areas.

“This is very clear. Get people out of there. Go back to the cities and towns and counties, planning boards and zoning commissions and have a very different approach,” Miller added.

Podship Earth on Fire Myths

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You can listen to Jared Blumenfeld’s Podship Earth podcast on Fire Myths here.

According to the bio on the Podship Earth website:

Jared Blumenfeld, was appointed by President Obama to be the regional administrator of the US Environmental Protection Agency (2009-2016), he also served as the Director of the San Francisco Department of the Environment, chaired the first United Nations World Environment Day held in the US, and founded the Business Council on Climate Change and Green Cities California. He worked for non-profits including the Natural Resources Defense Council (NRDC) and the International Fund for Animal Welfare (IFAW) where he helped protect millions of acres for wildlife and held corporations accountable. He thru-hiked the Pacific Crest Trail from Mexico to Canada. He is a trusted source for environmental stories and appears frequently in the New York Times, BBC, Economist, Los Angeles Times, NPR and other media outlets.

In this episode Blumenfeld interviews ecologist Dr. Chad Hanson of the John Muir Project.

Zinke: “It’s not the time for finger-pointing” Also Zinke: “I will lay this on the foot of those environmental radicals”

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A day after President Trump blamed California’s wildfires on a lack of raking, Secretary Zinke told Breitbart that “It’s not the time for finger-pointing” regarding wildfires.

And then literally a few minutes later Zinke said “I will lay this on the foot of those environmental radicals that have prevented us from managing the forests for years … This is on them.”

Not climate change. Not record high temperatures. Not record drought. Not high winds. Not over-development in fire prone landscapes. Not PG&E power lines that sparked the Camp Fire. Nope.

It’s all the fault of “environmental radicals.”

Does anyone know if “environmental radicals” are also the same as “environmental terrorist groups,” whom Zinke blamed for wildfires in California back in August?

#MakeAmericaRakeAgain

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“You gotta take care of the floors. You know the floors of the forest, very important… I was with the President of Finland… he called it a forest nation and they spent a lot of time on raking and cleaning and doing things and they don’t have any problem.” – President Donald J. Trump

INCHES OF RAIN DURING SUMMER (June – Sept):
Helsink, Finlandi: 12″
Los Angeles: 0.2″

DAYS OF RAIN IN SUMMER:
Helsinki: 64
Los Angeles: 2

P.S. If you do live in the wildland-urban interface it is a good idea to rank dry leaves and needles from around your home and remove dry materials from your gutters. Learn more about FireWise steps you can take as a homeowner.

California Chaparral Institute on new housing developments in very high fire-prone areas

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Rick Halsey of the California Chaparral Institute says so many smart things in this TV interview…and, in my opinion, the reporter does an excellent job as well. The segment starts at the 5:33 mark and runs to the 9:10 mark. Blog readers may recall that Rick Halsey has, in the past, been a commenter on this blog and has always offered spot-on perspective on a host of issues, including wildfires and the ecology of the chaparral ecosystem in California. Also, great work by the Center for Biological Diversity to help convince the San Diego County Board of Supervisors to delay decision on approving another subdivision in fire-prone areas.

NFS Litigation Weekly October 26, 2018

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Forest Service summaries:  Litigation Weekly Oct 26

A preliminary injunction was denied for the Quartz Integrated Project on the Umpqua National Forest because the Forest adequately addressed new information about red tree voles.  (D. Or.)

The Supreme Court stayed further proceedings in the “kids’ climate change” case.

(New cases.)  Both cases challenge the decision to sell wild horses from the Modoc National Forest without complying with or formally changing a policy that prohibits commercial slaughter of the horses.

(New case.)  Plaintiffs claim that authorization of activities that contribute to climate change violate the U. S. Constitution.  (D. Or.)

(New case.)  This case involves that Seiad-Horse Risk Reduction Project on the Klamath National Forest involving hazard tree removal and post-fire salvage logging and compliance with the forest plan and NEPA.  (E.D. Cal.)

 

Blogger’s notes:

The Cascadia case was discussed here when it was filed.  The case involves the application of “survey and manage” requirements in the Northwest Forest Plan to red tree voles. Red tree vole nesting sites are protected from logging unless the land manager determines the site is “non-high priority” (“NHP”).  Plaintiffs objected to the NHP designations for the project area.  Additional surveys occurred after the objection process and the Forest subsequently released “amendments to the EA” to “designate” additional NHP sites.  There was no public opportunity to review or object to these sites.

I am not that familiar with the workings with the Northwest Forest Plan, but I see some problems here.  “Designation” of sites for long-term management, especially if they would be suitable for timber production, is a forest plan decision, so I think what is really required here is a plan amendment process that would allow full public participation in the designation of each site.  In addition, the criteria for designating NHP (presumably from the NWFP) seem to all apply at a large scale without considering the importance of the actual site being designated, so it is hard to see any rationale for the designation (and the court opinion doesn’t provide one).  The court then finds that “plaintiffs had multiple opportunities to comment on the FS proposal to designate red tree vole sites as NHP,” but none of those occurred for the post-objection additions.  The court regards all of this as “minor changes.”  While viewing this as a NEPA problem might allow the new information to be considered not significant enough to trigger a supplemental EA, minor changes in a forest plan nevertheless require an amendment process.  Maybe someone could explain how this is supposed to work.

The public also had no opportunity to review or comment on how the Forest viewed changes in the resource management plan for adjacent BLM lands.  The changes would result in logging in 8 of the 27 red vole sites originally protected by the BLM plan, but the Forest determined (and the court agreed) that this “did not alter the number or spatial distribution of likely extant sites or records, or the amount or proportion of suitable habitat in reserves, and did not compromise the ability of other standards and guidelines or elements of the NWFP to provide a reasonable assurance of species persistence at the watershed scale.”  That feels like it dodged the question, but I could buy the BLM assertion that these sites were actually a small part of the overall watershed.

Finally, in looking at the other factors relevant to granting an injunction, the court seems to discount the irreversible environmental damage because “that fact is true in any environmental case.”  And it seems to punish plaintiffs for participating in settlement negotiations instead of filing a motion for an injunction earlier.  The court does explicitly qualify its holdings as being “at this stage” (meaning for a preliminary injunction), and a fuller airing of the facts might sway the court in the plaintiffs’ favor, but meanwhile logging is ongoing.

Here’s another case that I don’t think has been included in a FS summary.

“San Juan Trail Riders, based in Durango, along with national groups Trails Preservation Alliance and Access Preservation Association, ask the court to set aside a record of decision by the Dolores Ranger District that closed 30 miles of trails to motorcycles and implemented restrictions on others within Rico-West Dolores recreation area.”

 

Salvage logging, planting not necessary to regenerate Douglas-fir after Klamath fires

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The following press release was sent out yesterday by Portland State University. – mk

Researchers at Portland State University and Oregon State University looking at the aftermath of wildfires in southwestern Oregon and northern California found that after 20 years, even in severely burned areas, Douglas-fir grew back on its own without the need for salvage logging and replanting.

The study, published online Oct. 26 in the journal Forest Ecology and Management, is the latest to address the contentious issue of whether forest managers should log dead timber and plant new trees after fires, or let them regenerate on their own.

Melissa Lucash, an assistant research professor of geography in PSU’s College of Liberal Arts and Sciences and a co-author of the study, said that concerns in the Klamath over whether conifer forests would regenerate after high-severity fires have led to salvage logging, replanting and shrub removal on federal lands throughout the region.

But the study found that the density of Douglas-fir was relatively high after 20 years and was unaffected by whether or not a site had been managed.

“This is an area where forest managers are really worried that the Douglas-fir won’t come back, but what we found is that they come back just fine on their own,” she said. “We forget the power of natural regeneration and that these burned sites don’t need to be salvage logged and planted.”

Lucash suggests that those resources could instead be reallocated elsewhere, perhaps to thinning forests to prevent high-severity wildfires.

The research team also included Maria Jose Lopez, a research associate at Universidad del Cono Sur de las Americas in Paraguay; Terry Marcey, a recent graduate of PSU’s Environmental Science and Management program; David Hibbs, a professor emeritus in Oregon State University’s College of Forestry; Jeff Shatford, a terrestrial habitat specialist in British Columbia’s Ministry of Forests, Lands, Natural Resource Operations and Rural Development; and Jonathan Thompson, a senior ecologist for Harvard Forest.

The authors sampled 62 field sites that had severely burned 20 years prior on both north and south slopes of the Klamath-Siskiyou Mountain — some of which had been salvaged logged and replanted and others that had been left to regenerate on its own.

Among the study’s findings:

• Aspect, or the direction a slope faces, played an important role in determining the effectiveness of post-fire practices.

• Density of Douglas-fir was higher on north than south aspects, but was unaffected by whether or not a site had been managed, suggesting that Douglas-fir regeneration is inherently less abundant on hot and dry sites and management does not influence the outcome.

• On the flip side, management practices increased the density of ponderosa pine on south aspects, but had no impact on north aspects. That finding suggests that with rising temperatures and increasing severity of fires in the region, management would be most effective when tailored to promote drought-tolerant ponderosa pine on south aspects.

• Managed sites had taller conifers, which can improve fire resistance, but also had fewer snags — an important habitat feature for bird, small mammals and amphibian species in the region.

The authors recommend that forest managers should avoid applying the same post-fire management practices everywhere and should instead tailor practices to specific objectives and the landscape context.