Wilderness

Forest plans and “valid existing rights”

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This is about forest plan litigation – sort of.  The Michigan Wilderness Act included a provision protecting “valid existing rights.”  A series of forest plan amendments by the Ottawa National Forest imposed restrictions on motor boat use on a lake that was mostly within a wilderness area but partly touching private land.  A 2007 Forest Order, subjected violators of Amendment No. 5 to criminal liability.   An earlier case concluded that Michigan riparian water rights allowed for “reasonable use” of the lake’s surface water, and that, “the motorboat restrictions interfered with Thrall’s ‘valid existing right’ to use gas motor boats on Crooked Lake’ and thus fell outside the Forest Service’s regulatory authority.”

The question in the current case was whether purchasers of lakefront property in 2010 also had “valid existing rights” to unrestricted motorboat use.  After sorting out the timing questions in favor of the private owners in this case, the Sixth Circuit court revisited the nature of riparian rights, holding that the Forest Service could only prohibit unreasonable uses:

“But the Forest Service has not shown that it would be unreasonable under Michigan law to travel on 95% of the lake above a low-wake-zone speed. If you think otherwise, try being at one end of a three-mile lake with a five-mile-an-hour speed limit as an unexpected storm sets in.”

(Evidently what’s reasonable in Michigan is different from what’s reasonable in wilderness.)

 

This is how we “love wilderness to death?”

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I couldn’t ignore these two stories showing up the same day (but I didn’t look for a photo).

Deschutes and Willamette National Forests (OR) proposes limiting wilderness users:  “Wilderness rangers reported coming across unburied human feces more than 1,000 times.”

White River National Forest (CO) proposes limiting overnight camping in wilderness:  “During the 2016 summer season, Jerman added, Wilderness Rangers encountered 273 incidences of unburied human waste in the Maroon Bells-Snowmass Wilderness.”

Not my area of expertise, but does raise some management policy questions.  Maybe the permit should require completion of some training.

Early seral wildlife species driving forest planning debate in the southeast

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Here’s an in-depth article on the ongoing revision of the plan for the Nantahala-Pisgah National Forest in North Carolina, featuring the extent to which the Forest should provide early seral habitat (ESH).

Many conservation advocates disagree over whether promoting this specific sort of habitat over others is desirable on a large scale. They also question whether aggressive advocacy for ESH stems more from a desire to conserve species or to boost game numbers and accessibility for the benefit of sportsmen.  

Fish and Wildlife Conservation Council:

The FWCC is a proponent of expanding active wildlife habitat management and restoration through, among other things, more timber harvesting and controlled fires. Central to their advocacy is forest restoration and increasing the amount of early successional habitat across the landscape, including grasses, shrubs and trees that provide food, cover and habitat for wildlife.  The FWCC believes that the future management of the National Forest should target a minimum of 12 percent of forest in an age class of 0-12 years. The need to improve game populations is a central argument of the FWCC and has been cited as a reason to oppose new additions to the wilderness base in several county resolutions.

The Nature Conservancy:

Warwick of TNC said that historically speaking there’s strong evidence that there was a much greater distribution of young forest and more grassy areas across the landscape prior to the 20th century. However, fire suppression has been a primary factor in abetting forest growth that is now lacking in young forest age classes and creating a canopy that is too dense. “Most of the species that are declining in the Southern Appalachian require ESH somewhere in their life cycle,” he said. “If we decide it is important to stem their decline, then there’s no (other) choice than to take an active management role. That means more fire and timber harvesting.”

Southern Environmental Law Center:

Sam Evans, an attorney with the Southern Environmental Law Center and member of the stakeholders forum agrees that ESH is underrepresented in the forest, especially if you look at those tracts in isolation.  Nobody who is actively participating in stakeholder discussions is objecting to increasing habitat diversity, including an increase in harvest for ESH,” said Evans in an email written to CPP. He said that the organizations he works with are “wildlife advocates.” “The truth is, I and other conservation voices are supporting precisely the same goal—restoration of ecological integrity in order to provide needed habitat for all the forest’s native species,” Evans said.

To borrow from the forestry professionals, “ecological integrity is the answer.”  According to the interpretation of NFMA in the 2012 Planning Regulations any way.  What’s muddied the waters in NC is the idea that wilderness designation is somehow contrary to ecological integrity (it limits tools, but the desired outcome is the same).  Not mentioned in the article are which species are or will be vulnerable because of a lack of ESH (this isn’t what the TNC quote said), and it doesn’t really address how the current and expected conditions of private lands should be accounted for.  It does point out that old-growth stands are also underrepresented on the Forest.

Wildlife in Managed Forests

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In a previous post titled “The response of the forest to drought” the questions led to the opportunity to bring us up to date on the current state of elk and the role that sound forest management can play. Here are some quotes from various sources some of which contradict what we have heard on this site regarding the need for dense cover:

A) “Wildlife in Managed Forests” – Elk and Deer – 2013, Oregon Forest Resources Institute
1) Page 2 – “Preferred forest habitat age: All forest ages, but most heavily associated with young stands where food is most abundant.”
2) Page 10 – “These results suggest that current commercial forestry practices are compatible with maintenance of ungulate forage species.”
3) Page 11 – ““For land managers who are interested in increasing healthy elk populations, their focus would be better spent on providing forage opportunities rather than cover.””
4) Page 13 – “Forage quality in late spring and summer is key to successful reproduction.” … “Elk prefer and will select certain highly nutritious and palatable plant species when they can get them.
These species, mostly in the forage classes of grasses, sedges, annual forbs and deciduous shrubs, provide a more concentrated source of energy than the less-preferred ferns, evergreen shrubs and conifers”
5) Page 14 – “Limited timber harvest on USFS lands since the implementation of the NW Forest Plan and social, political and legal mandates associated with late successional species have resulted in less early seral habitat on large contiguous tracts of USFS lands.”
6) Page 15 – “Where the objective is to provide landscapes with mosaics of early and advanced seral stages for elk, the effort will have to be ongoing in perpetuity and thus will be most effective if integrated in long-term management plans where habitat needs of elk are tied to forest manipulations”
7) “Land managers whose objectives include providing habitat and forage for deer and elk may want to consider the following silvicultural treatments:
• Where thinning is prescribed, thin timber stands to or below 50 percent crown closure to allow sufficient sunlight to reach the ground surface for early seral vegetation to become established.
• Retain any natural meadows and openings and remove encroaching conifers from these open areas. Note that power-line easements make great openings and often provide habitat for deer and elk.
• In thinned stands, create gaps of 1 to 5 acres on sites with east, south or west solar aspect and slopes less than 30 percent and away from open roads.
• In created gaps, plant a few native shrubs that provide fruit, nuts, berries or browse for wildlife.
• Seed all disturbed soil including skid trails, yarding corridors, landings and decommissioned roads with a seed mix of native grass and forb species that will provide high forage value for deer, elk and other species. These management prescriptions may not make sense for all landowners or all landscapes, but they will work in some areas to help provide habitat for deer and elk.”

B) From the Rocky Mountain Elk Foundation we have 13 Bizarre Elk Facts That Most Hunters Don’t Know:
• “old trees are actually hurting elk populations.
“Our forest lands, whether on public or private land, are overstuffed with trees,” he told me over the phone. “The American public just loves trees, but in the forest where the elk live, too many trees block sunlight from getting to the forest floor. We’re not growing grasses and forbs, which are key to elk nutrition.”
What is needed are young forests, also known as early-successional habitats, that allow elk herds to thrive. Opening up tree-choked landscapes promotes the growth of low-lying vegetation, which are beneficial to elk and other wildlife.
“We’d like to see a lot more biodiversity out there so we’re really trying to encourage more thinning and more prescribed burning,” Tom said. “It’s not just for elk. There are a wide variety of bird species, small animal species, and big game animals that really benefit from the habitat work we do for elk.””

C) From the Forestry Source by Steve Wilent – Page 2 May 2014 “Embracing the Young Forest”:
1) “The Northwest Forest Plan’s was to secure late successional stands for the spotted owl … Now the battle is being waged … for … the inhabitants of the youngest forests.”
2) “In the Northeast and upper Midwest we documented 65 species … that were declining because of the loss of young forest habitat.”

To conclude this post let me repeat, one more time, that Single Species Management such as for the NSO and the 14 million acres set aside to “preserve” its habitat is having a far ranging negative impact on countless other species including elk. Single Species Management isn’t even working for the NSO as mentioned many times before (more details to come at a later date in response to a question from Jon Haber in a previous discussion thread on this blog site). Contrary to the opinion expressed by some on this blog site, sound forest management in the form of more small (~40 to ~200 acres) early seral regeneration openings and thinnings with included similar sized patches of stands near the maximum target density more evenly distributed throughout the forest would improve forage while providing cover from prey. Extensive contiguous acreages of dense conifers are counter productive to increasing or sustaining elk populations. Which is to say that those who focus on single species management and especially on late successional habitat (i.e. old growth) have forgotten about the importance of edge effect in wildlife management and the importance of maintaining a balanced age distribution of stands to replace the old growth which, no matter how hard you try, can’t be “preserved” in its current state over the long term. Heterogeneity/diversity is preferable to large contiguous acreages of homogeneity for all species in the long run.

As Population Increases, More Wilderness is Needed?

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Thanks to Earthjustice for this photo of the Sunset Roadless Area.

The Denver Post reports on efforts to get more wilderness in Colorado, and it’s picked up by the AP.. interesting to take a look at this article and compare it to the Gold Standard of Journalism here. I am a fan of interior West newspapers, but please Denver Post, don’t have annoying music and videos when we simply want to read a story!

Here’s an excerpt:

Population growth and the development boom in the West are propelling the efforts to establish wilderness protection while it’s still possible. Colorado Parks and Wildlife officials found, in a 2013 survey, that 70 percent of Coloradans consider wilderness or undeveloped open lands offering solitude very important or extremely important. And 72 percent ranked protection of more land as wilderness as “high-priority” or “essential” — an even higher proportion of residents than the high percentages favoring more forest campgrounds, community trails, urban greenways and parks.

But Congress consistently has failed to deliver on most wilderness proposals.

“We need to set aside land and protect it as much as we can,” said San Juan County Commissioner Scott Fetchenhier, who went to Washington recently as part of a delegation of elected officials.

The locals extolled “economic values” of preserving nature — fellow San Juan County Commissioner Ernie Kuhlman has said that, with the demise of mining, wilderness that enables recreation is Colorado’s new gold.

My question is what “development” is wilderness preserving “nature” from? I’d think, as a person who spent time making comparison tables of “things allowed in wilderness” and “things allowed in roadless areas,” that you could be more specific about the benefits of a wilderness designation. Perhaps your thinking would be “no mountain bikes”- it’s impossible to tell exactly from this article. But since the population in Colorado is growing, it’s likely to be more crowded in the backcountry whether it’s a designated wilderness or not. In fact, the CPW study cited in the story says “undeveloped open land” into which roadless areas, as well as other designations, would also fit.

Colorado ranks sixth among states for its amount of federally designated wilderness areas but has had few new designations recently. The state’s population is meanwhile growing at nearly twice the national rate.

What on earth does the state’s population growth have to do with designation of wilderness? This article seems to assume that these two concepts are related. It almost sounds as if the person who wrote this, or the group that spoke to them is thinking that houses will be built unless the area is designated wilderness. Maybe the lack of new designations means simply that enough was already designated? It seems to me like this article seems to simply accept the logic presented in (a press release? an interview with TWS?) without asking reasonable questions about the assertions made.

From the Gold Standard piece by Vince Byzdek here:

This method involves a kind of triangulation – seeking out multiple authoritative sources, vetting them thoroughly, disclosing as much as possible about the sources, and allowing people who are accused or challenged in our stories to have the chance to comment before we publish the stories. That means always including opposing views.<

Court slams Forest Service wilderness decision

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The federal district court in Idaho has ruled against the state’s use of helicopters to collar elk in the Frank Church-River of No Return Wilderness. In Wilderness Watch v. Vilsack it held that the Forest Service failed to consider the cumulative impacts of a one-year proposal when it knew the state intended this to be part of at least a ten-year program. It found that the decision to not prepare an EIS violated NEPA.

The court also found that the Forest Service violated the Wilderness Act. In 2010, the court had approved use of helicopters to collar wolves because its purpose of “understanding the wolf” furthered wilderness values. However, the judge warned that, because of cumulative impacts (and probably because of some skepticism about the state’s motives), “the next project will be extraordinary difficult to justify,” and that the Forest Service would need to give sufficient notice to allow opponents to “fully litigate” such projects.

The Forest Service issued a special use permit in January 2016, and within two days the elk collaring was completed, along with four wolves not authorized by the permit. The court rejected state arguments that it didn’t need permission, and held that the Forest Service failed to make a proper determination that the helicopters and collaring were necessary for wilderness management because it considered only “a one-year portion of a much larger long-term plan.”

The relief granted by the court is noteworthy:

  • Injunction preventing the Forest Service from considering any of the data gathered from the elk and wolves as a result of this project
  • Injunction preventing the Forest Service from approving any future helicopter projects without delaying implementation for 90-days to allow affected groups to file challenges to the projects
  • Inunction preventing the state from using any of this data in further proposals seeking approval from the Forest Service
  • Mandatory injunction ordering the state to destroy the data received on the elk and wolves collared in this project

How do you suppose the Forest Service rewards this kind of decision-making?

Places Worth Protecting

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Twin Lakes, near Bridgeport, California, hasn’t been intensely developed, solely because of its remote location. There are clusters of private cabins. The terrain would make for an outrageous ski area but, it is too far out of the way to be successful. So, the best use of this land is to preserve it.

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My Instagram: www.instagram.com/larryharrellfotoware/

Read the Multiple-Use Act

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It’s worthwhile to re-read the law every once in awhile.  This time, because of some recent discussions here, a couple of things stood out.  Here’s the definition of multiple-use:

‘‘Multiple use’’ means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.”

The first italicized phrase indicates that any supposed “commitments” (by Gifford Pinchot or otherwise) prior to this law to any particular uses in particular places have been overwritten by Congressional authorization to change land management to meet current needs (to be determined by a forest planning process).  (I guess that also makes the “high level” of sustained yield in that definition something that has to be determined in light of current needs.)

The second refutes the notion that there is any requirement in the law that national forests be managed for “things” that produce dollars (or jobs).

It’s probably also worth reiterating the part of the law that nullifies the “wilderness is not multiple-use” argument:  “The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of this Act.”

Massive Crater Lake Wilderness Area Fantasy

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Oregon Wild has proposed a massive half million acre Wilderness Area, partly to “protect” Crater Lake. The Klamath County Commissioners are saying no, with fears that summer fires would affect public health, and that those unhealthy forests need active management.

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Here is a map of what Oregon Wild wants done.